Director of Public Prosecutions v Moughanie
[2012] VCC 1427
•17 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-02157
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALAN MOUGHANIE |
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JUDGE: | HER HONOUR JUDGE DOUGLAS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 August 2012 | |
CASE MAY BE CITED AS: | DPP v Moughanie | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1427 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown (Plea) (Sentence) | Mr P. Pickering Ms M. Milardovic | |
| For the Accused | Mr P. Guggenheimer |
HER HONOUR:
1
Alan Moughanie, you have pleaded guilty to one charge of armed robbery on Maulik Padya, an attendant at a United Service Station, which took place on
7 September 2010at Roxburgh Park. The weapon you used was a black baton. The proceeds of the armed robbery was $400 in cash.
2 A summary of the prosecution opening was tendered and I annex that document to these sentencing remarks, and that was read to the parties, and I will not repeat that now, but that document will be annexed to these sentencing remarks.
3 A closed circuit television footage was also tendered which depicted you committing the armed robbery. The CCTV footage showed you moving behind the counter with the baton raised close to the attendant. The attendant said you were yelling at him to open the till and he had difficulty because the key was bent. The CCTV footage showed that you were reasonably aggressive towards the attendant.
4 There was no Victim Impact Statement provided by the attendant. Nevertheless, I sentence you on the basis that the victim of the armed robbery, Mr Padya, was put through a frightening ordeal by you as he was alone in the early morning confronted by an armed person, and I have had the advantage of seeing exactly what you did on the closed circuit television footage.
5 The offence of armed robbery is a serious offence, and that is reflected in the maximum penalty of 25 years’ imprisonment. It is incumbent upon sentencing judges to give weight to protection of the community, general deterrence and just punishment in relation to this offence, which was an armed robbery on a convenience store in the early hours of the morning where the victim is perceived as a soft target because of his vulnerability. I must also give weight to deter you from committing this type of offence again.
6
Your criminal record, which is attached to the indictment, shows that you have prior convictions and findings of guilt from ten court appearances between
10 January 2001and 14 July 2009. The offences include assault, driving in a manner dangerous, assault police, offensive behaviour, refusing to state your name and address, indecent language in a public place, recklessly causing injury, obtaining property by deception, possession of ammunition without a licence and possession of methylamphetamine.
7 The dispositions which have been imposed by courts have included a good behaviour bond without conviction, fines, imprisonment to be served by way of an Intensive Correction Order and a Community Based Order. You breached the Community Based Order which was imposed on 12 December 2007 in relation to possession of methylamphetamine, an offence in relation to ammunition, and on 14 July 2009 you were sentenced to four months’ imprisonment to be served by way of an Intensive Correction Order .
8
You were arrested on the same date that you committed the armed robbery,
7 September 2010, and were remanded in custody. On 25 November 2010 you were granted bail, and on 7 December 2010 you were released on bail. Consequently, you had 91 days in pre-sentence detention. Between
30 November 2010 and 23 November 2011 there were various committal mention dates where your lawyers attended and the matter was adjourned as there were negotiations in relation to other matters, as well as this matter. I think that first date is wrong. If counsel could help me with that first date at some stage. Anyway, I will keep going. The result was you pleaded guilty to this charge on 23 November 2011.
9 I take into account your plea of guilty as you have saved the community the cost and inconvenience of a trial and the fact that the attendant, the victim of the armed robbery, did not have to give evidence at a committal or at a trial.
10 I also take into account in your favour that prior to your remand in custody you had not been in detention or prison before that, thus any time in prison will be harder for you than a person who has undergone a sentence or detention before..
11 Currently you are on remand, having been arrested on 15 April of this year in relation to two armed robberies of chemist shops of Oxycontin. The allegations are that on 8 April you were the offender at a Greenvale pharmacy armed with a kitchen knife and attempted to commit an armed robbery seeking Oxycontin. The person working in the pharmacy asserts knowledge of you by voice recognition.
12 Further, you were charged that you committed an armed robbery on 14 April 2012. At that stage the allegation is you were armed with a 30 centimetre axe. The armed robbery was committed on a pharmacy located in Coolaroo, and Oxycontin was sought by the offender. The prosecution case is that you were the offender, as the sales assistant asserts that you were recognised as a person known to those in the shop.
13 Mr Guggenheimer appeared on your behalf and set out your personal circumstances. He relied on a report of forensic psychologist, Dr Michelle Wauchope, dated 19 May 2012, in which she also referred to your personal circumstances.
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.
17 The forensic psychologist reported that you were 18 years at the time and you became extremely angry and disrespectful of those in authority, in particular members of the police, and you believed that your father had been mistakenly arrested and mistakenly sentenced to a term of imprisonment. You did not work after leaving school until you were around 22 years of age, except for helping out in your family’s milkbar. You were then employed in a freight company for about a year, then with a wholesale car company where you were employed for three years.
18
You told Dr Wauchope that your life was really good during the period you worked for the wholesale car firm but then as your mother became unwell your family decided that you should stay home to look after her. You told the psychologist you then became bored and that you became involved in
anti-social activity with like minded young men at this stage.
19
As to your drug and substance abuse. When you were around 15-16 years of age you using cannabis every second weekend, but by the time you were
18 years of age your consumption had increased to daily use. It was at this stage you were very angry because your father had been convicted and imprisoned, you considered, wrongly, for drug trafficking. You continued to use cannabis on a daily basis until you were around 21 years of age. At that stage you commenced using amphetamines and methylamphetamines around three to four times a year. However, you used those drugs every couple of days after a while and then daily for five years. When you were around 23 years of age you commenced using cocaine every two to three months, you said on social occasions. You told the forensic psychologist that cocaine has never been a problem drug for you.
20 Four years ago, when you were 27 years of age, an acquaintance shot you. Two bullets entered your body, shattering your lower leg, which required surgery to have plates inserted in your leg. You also suffered a gunshot wound to a hand. I have not been given any details of the circumstances in which you received the gunshot wounds.
21 After that time you had been prescribed Oxycontin and morphine and you subsequently became addicted to Oxycontin. After a while you also craved Xanax and heroin. You told Dr Wauchope that you only smoked heroin, you were never an intravenous user. Although you were seeing your family throughout this time, they were unaware of the quantities of drugs you were consuming. Your wife had concerns, but she believed you were using prescribed drugs which were prescribed legally by doctors.
22 Clearly your addiction to Oxycontin and your use of Xanax is the underlying reason for committing this serious offence.
23 I enquired as to why you had the baton with you during the armed robbery, and during the plea hearing counsel obtained instructions that it was your mother's, not yours.
24 After your release on bail you commenced a 16 week program at a residential rehabilitation centre conducted by the Salvation Army Basin Centre. You entered the program on 7 December 2010. A letter from that organisation was tendered on your behalf dated 31 July 2012. The author reported that you left the program on 21 February 2011, and that was said to be an unplanned exit as far as the centre was concerned. He said you attended counselling sessions and took part in self-help groups such as anger management, relapse prevention, coping strategies, anxiety management and spirituality. It is unfortunate you did not complete that program.
25 As a part of a program known as CISP, during the time you were released on bail, which is a four month program, you were required to attend a six week drug rehabilitation program at Moreland Hall and you did so. You then commenced a program at Odyssey House, having been assessed as suitable on 2 May 2011. You remained a short time there and left on 5 August 2011. You were there for only three months.
26 Unfortunately, a short time after that you relapsed and commenced using methylamphetamine again. As I stated, you have been in custody since April of this year in relation to the two armed robberies with which you have been charged and which you have continued to deny any involvement.
27 Dr Wauchope reported as follows:
“Oxycontin is a trade name for the drug oxycodonehydrochloride and it is an opioid agonist that belongs to a narcotic pain reliever drug group. Opioid agonists are some of the most effective pain relievers available and unlike other analgesics they have an increased analgesic effect with increased doses meaning the more you take the better you feel. Thus for people who suffer chronic pain a medication like Oxycontin is desired because it can potentially provide up to four times the relief of a non-opioid analgesic. So even the more severe degree of pain can be managed and when it is used properly it can provide pain relief for up to 12 hours.”
28 She also reported this:
“It should also be noted that it is very common for individuals who are prescribed Oxycontin to not only become addicted to the drug but also to crave more and more and to behave in an uncharacteristic and unusual and extreme way especially when mixing it with other substances. Oxycontin artificially stimulates the reward/pleasure areas in the brain and ongoing use leads to increased confidence in the drug and less confidence in the normal reward/pleasures of life. It also leads to physical addiction and whilst over time the individual does not feel the same euphoria they once did they need to continue to use the drug to avoid the pain they feel without it and once addicted, if they have to go without it, they will suffer effects.”
29 She also set out the physical side effects. She reported that these days the there is generally a problem in the community with this drug as it is a suitable substitute for heroin and that when a person can no longer obtain heroin, they turn to lower priced street heroin, which she said is often used with more devastating effects.
30 Dr Wauchope reported that you informed her that you are motivated to avoid any further incarceration in the future and want to be a better son, husband and father. You told her that you are able to articulate a number of appropriate strategies for relapse prevention in the future and that you also informed her that you have a job to go to if you are released.
31 Currently in prison you a prescribed a drug Tramadol, which is generally prescribed as a painkiller for moderate to severe pain. You have been prescribed this in relation to back problems as a result of the gunshot wounds.
32
I accept that the offence, although it was a terrifying ordeal for the attendant, as I stated, was in the low to medium range for sentencing purposes, as clearly it was not professionally carried out. I accept the point
Mr Guggenheimer made that the car you used was registered in your mother’s name and thus you were easily detected.
33 I take into account, as I have stated, in your favour that you have not been to prison before, so prison will be harder for you than for a person who has served a term of imprisonment before. I take into account in your favour that you successfully completed the term of imprisonment to be served by way of an Intensive Correction Order. I also take into account in your favour that you have a supportive family who will continue to support you.
34
As to your prospects of rehabilitation, any chance you have of rehabilitation is dependent on you successfully abstaining from illegal drugs. You have made some attempt at rehabilitating yourself but your attendances were very
short-lived when you decided to leave each of the two residential rehabilitation services when clearly you were not rehabilitated and needed more assistance from those at the rehabilitation centres.
35 Your family have been supportive, but you have been able to misrepresent what you are doing to your family who seem to entrust you implicitly, and that trust has been misplaced, because throughout the period when they saw you regularly you were abusing drugs.
36 Further, your rehabilitation can only be successful if you deal with the underlying reasons why you take drugs. Dr Wauchope referred to anger management and resentment in relation to your father’s imprisonment.
37 You are now 32 years of age and the father of two little children. The time has come for you to deal with your drug abuse, which is the reason, as I said, you committed the offence.
38 Your brother gave evidence that you have expressed remorse and I accept that you regret that you have been addicted to drugs which caused you to commit the offence.
39 I sentence you taking into account the matters I have mentioned in your favour and the principles of totality.
40 I will sentence you now. I sentence you in relation to the count of armed robbery to three years' imprisonment, and I order that you serve 18 months before you become eligible for parole.
41 Pursuant to s.6AAA, had you not pleaded guilty, I would have sentenced you to four and a half years' imprisonment, with a minimum period of two and a half years before you become eligible for parole.
42 I take into account the pre-sentence detention that you have served as having been already served. What is the figure?
43 MS MILARDOVIC: Your Honour, it was 91 days at the plea hearing, and then at the plea hearing to today is 15 days, so the total should be 106 days.
44 HER HONOUR: That is not including today?
45 MS MILARDOVIC: That is not including today.
46 HER HONOUR: What is it again?
47 MS MILARDOVIC: 106 days.
48 HER HONOUR: You agree with that, Mr Guggenheimer?
49 MR GUGGENHEIMER: Yes, Your Honour, I do.
50 HER HONOUR: OK, so it is 106 days. There are no matters outstanding?
51 MS MILARDOVIC: Yes, Your Honour. At the plea hearing counsel made an application for a retention order, and I have just got the order.
52 HER HONOUR: All right. You can sit down for a moment.
53 MR GUGGENHEIMER: It's not opposed, Your Honour.
54 HER HONOUR: Thank you. I will sign that now.
55 MS MILARDOVIC: Thank you, Your Honour.
56 HER HONOUR: This is for the forensic sample?
57 MS MILARDOVIC: Yes, a sample was taken, Your Honour, this is a retention order.
58 HER HONOUR: Yes, yes. Thank you. I have got to tick boxes on this. So it will be the seriousness of the offence, the prior convictions, the order is not opposed, and it is in the public interest.
59 MS MILARDOVIC: Your Honour sought clarification in relation to some dates.
60 HER HONOUR: That was the date at the committal mention date. The last date was 23 November, and I had said 30 November 2010, and I do not know whether that is right.
61 MS MILARDOVIC: That was the last committal mention date, 30 November 2010. So I think Your Honour mentioned 25 to 30 November 2010.
62 HER HONOUR: What I might do, I think my dates are all wrong. I will just say there were various committal mention dates and the accused indicated his indication to plead to guilty, which obviously I take into account in his plea of guilty on 23 November 2011.
63 MS MILARDOVIC: That's correct, Your Honour.
64 MR GUGGENHEIMER: That's correct, Your Honour.
65 HER HONOUR: Thank you. There are no other matters?
66 COUNSEL: No, Your Honour.
67 HER HONOUR: Thank you. Would you remove the prisoner, please.
68 (Prisoner removed.)
69 See Summary of Prosecution Opening attached.
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IN THE COUNTY COURT Indictment No.A12460960
OF VICTORIA County Court Ref No. CR-11-02157
AT MELBOURNE
DIRECTOR OF PUBLIC PROSECUTIONS
V
ALAN MOUGHANIE
SUMMARY OF PROSECUTION OPENING
Date of document: 5 March 2012
Filed on behalf of: Director of Public Prosecutions
Prepared by:
Craig Hyland Solicitor’s Code: 7539
Solicitor for Public Prosecutions Telephone: (03) 96037666
565 Lonsdale Street
Melbourne VIC 3000 Ref: M. Milardovic: 1004928
CHARGE:
Armed Robbery: s.75A(1) Crimes Act 1958
BACKGROUND
The Accused resides at 43 Lincoln Crescent in Roxburgh Park.
On the 7th of September 2010 at approximately 6.30am, Maulik Pandya was the attendant at the United Service Station on Somerton Road in Somerton.
The Accused entered the store wearing a baseball cap and had a dark coloured jacked covering his face so only his eyes were visible.
Mr Pandya had time to press the duress alarm as the Accused approached him carrying a police style baton. The Accused yelled “give me the money, give me the money” and shook the baton at the victim.
As the victim backed away from the counter, the Accused raised the baton and moved behind the counter, trying to open the register with the key.
The key bent in the lock of the register and the Accused yelled at the victim to “open the till”, but he could not because the key was bent. The register contained $400.00 cash.
The Accused told the victim to wait by the manger’s office but instead the victim ran outside. The victim then saw the Accused leave the store carrying the till which had been ripped off the counter. The victim yelled at the Accused to leave it, but the Accused told him to go back inside.
As the victim confronted the Accused and tried to grab the till, the Accused dropped the till and raised the baton towards the victim. The Accused then picked up the till again and ran towards a green car registration RHR317. He opened the boot of this car and put the till inside.
The police attended the service station and the following exhibits were located:
i.A blue cap with white “Billabong” motif worn by the Accused at the time of the armed robbery;
ii.Black coloured tracksuit pants used by the Accused in an attempt to conceal the registration plates of the motor vehicle (DNA examination of the item later revealed the likelihood ratio is greater than 460, which is considered to be moderately strong).
10.This incident was captured on CCTV footage.
11.The vehicle was subsequently identified as being registered to the Accused’s mother, Amira Moughanie.
12.Police attended at the Accused’s home and located the green car, a 2000 Toyota Avalon. A search of this motor vehicle was conducted and the police located a black baton.
13.The police also located and seized the coin compartment contained in the cash drawer stolen by the Accused. They also located EFTPOS receipts, E-voucher receipts, empty plastic coin bags and two pieces of paper with vehicle registration details written on them.
14.The victim later identified the two pieces of paper as being written by him. He was also able to identify the Telstra E-voucher receipts which he states could only be printed from the e-Pay terminal at that United Service Station in Somerton.
15.At 10.30am, the Accused presented himself at Broadmeadows Police Station for a tape recorded record of interview.
16.The Accused stated that:
- he was at home at 6.15am (qu.23)
- he was asleep (qu91)
- he was at home from 1pm the day before until he left at about 9-9.30am that morning (qu.37-40, 75-76, 82-83)
- he left home then to get his sister’s car fixed (qu.41)
17.The Accused otherwise was not cooperative with the police and denied his involvement in the armed robbery.
Penalties
The maximum penalty for armed robbery is Level 2 imprisonment (25 years maximum).
Orders
(1) s.464ZF – forensic sample
(2) Forfeiture - baton
(3) Compensation - $400
Pre Sentence Detention
The Accused has spent 91 days in custody in relation to this matter.
Chronology
7 September 2010 Offence, arrest and filing hearing
Remanded in custody
20 September 2010 Bail application, refused
25 November 2010 Bail granted, commencing on 7 December 2010
30 November 2010 Committal mention, committal listed for 30 May 2011
9 May 2011 Special mention, 30 May 2011 committal vacated.
5 October 2011 Committal, adjourned to 23 November 2011
23 November 2011 Committal, SHUB plea guilty to one charge of armed robbery
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