Director of Public Prosecutions v Moussa
[2023] VCC 1799
•6 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST Case No. CR-22-01701
Indictment No. C2215148.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BACEIL MOUSSA |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 July 2023 | |
DATE OF SENTENCE: | 6 October 2023 | |
CASE MAY BE CITED AS: | DPP v MOUSSA | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1799 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Sentence – Aggravated home invasion – Two co-offenders – Armed with machete – Children present in the home – Early hours of the morning – Upper mid-range offending – Substance use – Socially disadvantaged background – Borderline intellectual functioning –Youthful offender – Guarded prospects of rehabilitation – Parity
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991
Cases Cited:Hogarth v The Queen (2012) 37 VR 658 – DPP v Meyers (2014) 44 VR 486 – Bugmy v The Queen (2013) 249 CLR 571 – Balshaw v The Queen [2021] VSCA 78 – Marrah v The Queen [2014] VSCA 119 – Newton v The King [2023] VSCA 22 – DPP v Herrmann [2021] VSCA 160 – Sabbatucci v The Queen [2021] VSCA 340
Sentence: Total effective sentence 5 years’ and 6 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Davison Mr Z D’Monte | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms N Kaddeche Ms A Watters | Chester Metcalf & Co |
HIS HONOUR:
1Baceil Moussa, you have pleaded guilty to one charge of aggravated home invasion.[1] The maximum penalty for this offence is 25 years’ imprisonment.[2]
[1] Contrary to s 77B of the Crimes Act 1958 (‘CA’).
[2] Pursuant to CA s 77B.
The facts
2The prosecution filed a Summary of Prosecution Opening for Trial dated 20 February 2023, which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.[3]
[3] Ex P1.
3At approximately 3.30 am on 12 February 2022, you and your co-offenders, Dylan Aslan and Richard Markhail, arrived at a home in Craigieburn in a red Ford Falcon. The vehicle was parked in the middle of the street and the three of you made your way to the house with masks over your faces.
4You were captured on CCTV footage approaching the address wearing gloves and carrying a machete. Aslan wore a hoodie, a skull mask, gloves and carried a knife in his right hand. Markhail also wore a hoodie, as well as a baseball cap, facemask or balaclava, black gloves and carried a small imitation handgun. Markhail unsuccessfully attempted to lift the garage roller door before kicking in the front door and entering first, followed by you and Aslan.
5The victims, Christopher Sturrock, Tegan Miller and her two children, aged 4 and 2 respectively, were present at the time. Sturrock was in the backyard smoking a cigarette and Miller was upstairs. When the three of you entered, Sturrock saw you all run upstairs with a gun and a machete. He heard screaming from upstairs and after grabbing the youngest child he called 000.
6When police arrived and demanded you surrender, Sturrock saw the three of you panic and attempt to flee. You exited the home from the main bedroom upstairs onto the second-floor balcony.
7Aslan fled downstairs to the rear courtyard and climbed over the back fence into the backyard of a neighbouring property, dropping a purse in the process. He headed towards a pedestrian side gate and dropped a hunting knife, digital scales, and a pack of cigarettes. He then climbed the gate and fled.
8Senior Constable Shaun Harper climbed to the second-floor balcony to find you and Markhail on the roof adjacent to the balcony. Markhail repeatedly threatened to jump off the roof before doing so. First Constable Tyler Sherlock tackled Markhail to the ground and arrested him.
9You were arrested on the roof by Senior Constable Harper. You were cautioned by Detective Senior Constable Alex Nucci, who observed $9,580 in cash and a commercial quantity of methylamphetamine. No charges are before me in relation to these items.
10Police examined the scene. Inside the house the black machete you possessed was located by police along with the skull mask worn by Aslan.
11You were taken to Fawkner police station where you provided a ‘no comment’ record of interview, as was your right.
Victim impact
12Neither Sturrock nor Miller prepared victim impact statements. Nonetheless, where no victim impact statement is relied upon, a sentencer may draw reasonable inferences from the known circumstances regarding the likely impact of an offence upon any victim.[4]
[4] See R v Miller [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Lomax [1998] 1 VR 551, 559–560 (Ormiston JA, Winneke P and Hedigan AJA agreeing); R v Rankin [2001] VSCA 158 [10] (Winneke P, Vincent JA and O’Bryan AJA agreeing); MA v The Queen [2012] VSCA 214 [83] (Neave JA, Bongiorno JA and Whelan AJA agreeing).
13The victims would have suffered considerable distress and anxiety as a result of your conduct. I note the agreed summary states Miller ‘scream[ed] when confronted by the intruders upstairs’. Sturrock and Miller each had a right to feel safe in the home and the incident would have been a terrifying experience for them both, particularly as Miller’s young children, aged 4 and 2 years, were present at the time of your offending.
Offence seriousness
14Aggravated home invasion is a very serious criminal offence as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature, on behalf of the Victorian community, views this offence.
15The offence was introduced into Victoria in 2016[5] ‘to capture the most serious instances to home invasions’ as a ‘necessary response to recent incidents of criminal offending’, and in recognition of the need for ‘government to make laws which help improve community safety’.[6]
[5] CA s 77B was inserted by s 3 of the Crimes Amendment (Carjacking and Home Invasion) Act 2016 which came into operation on 7 December 2016 (SG (No. 375) 6/12/2016 p 1).
[6] Victoria, Parliamentary Debates, Legislative Assembly, 1 September 2016, 3330 (Martin Pakula MP, Attorney-General).
16The government was ‘very concerned about recent serious criminal offending, which involved breaking into people’s homes’.[7] In the Second Reading Speech associated with the enactment of the section, the Attorney-General said:
The government is introducing offences and penalties which appropriately reflect the terrifying nature of these crimes. In doing so, the government, and Parliament, denounce the perpetrators of such crimes in the strongest terms and send a message to the community that such activities will not be tolerated.[8]
[7] Ibid 3329.
[8] Ibid.
17Later the Attorney-General said:
It is unacceptable for someone to feel unsafe in their own home. It would be even worse to actually be confronted by strangers in what should be a person’s sanctuary. …the effect on victims is … rightly condemned by the introduction of this offence. … The community rightly expects that such acts with their traumatic consequences for victims should be punished in a manner consistent with the harm caused.[9]
[9] Ibid 3330.
18Prior to the enactment of the offence of aggravated home invasion, the Victorian Court of Appeal in Hogarth v The Queen[10] (‘Hogarth’), a case involving a ‘confrontational’ aggravated burglary,[11] said: ‘Home invasion is a particularly nasty form of criminal conduct’ and a particularly ‘egregious form of aggravated burglary’.[12] This is particularly so, it was said, where, as here, the offence is premediated and committed at night.[13]
[10] (2012) 37 VR 658 (‘Hogarth’).
[11] Under CA s 77(1).
[12] Ibid 660 [6].
[13] DPP v Brown (2004) 10 VR 328, 336 [43] (Vincent JA) cited in Hogarth 667 [34].
19Clearly, general deterrence, denunciation and just punishment are important sentencing considerations in this case.
20In DPP v Meyers (‘Meyers’) [14] the Victorian Court of Appeal outlined the ordinarily relevant considerations that apply in assessing the relative seriousness of an example of the related offence of aggravated burglary. Those matters include the offender’s intent at the point of entry, the mode of entry, whether the offender was carrying a weapon, whether the offender was alone or in company, the time of day at which the burglary took place, what the offender knew or believed about who would be inside, and whether the offender was someone of whom the victim was particularly frightened beforehand.[15]
[14] (2014) 44 VR 486.
[15] Meyers 498 [47]–[49] (Maxwell P, Redlich and Osborne JJA).
21I accept there was a degree of premeditation involved in the commission of this offence. You were personally armed with a machete and disguised yourself with a mask. The offending took place in the very early hours of the morning and entry into the home was forceful and involved kicking down a door. Your intention at the point of entry was to steal from Sturrock and Miller. You were accompanied by two masked men, one armed with an imitation firearm and the other armed with a hunting knife. By your plea of guilty to the present charge you admit you were aware of the presence of these weapons at the time of entry. I also accept the prosecutor’s submission that you were reckless as to the fact that Sturrock, Miller and her two children would be home.
22In mitigation, I accept there are a number of circumstances that take your offence outside the range of the more serious examples of aggravated home invasion. You did not inflict any injuries on the victims, however as I have said previously, your actions would have still been frightening for Sturrock, Miller and her very young children. I also acknowledge that it is unlikely that you were the leader, or instigator, of the offending and it is more likely that you were a follower.
23At the plea hearing, both your counsel and the prosecutor accepted my assessment of this being an upper mid-range example of the offence.
24Importantly, I must be careful in fixing the sentence for aggravated home invasion to ensure you are not punished for the conduct that occurred after entry was gained into the victims’ premises.[16] As the Victorian Court of Appeal observed in Meyers:
Apart from supporting an inference as to what it was that [you] intended to do, the seriousness of what took place after entry cannot affect the sentence on the aggravated burglary charge.[17]
You are not to be punished for any uncharged acts and I cannot treat them as aggravating features of the offence charged.[18]
[16] Meyers 503 [70]–[71]. See also Pearce v The Queen (1998) 194 CLR 610; R v Lacey [2006] VSCA 4 [24] (Vincent JA, Callaway and Chernov JJA agreeing).
[17] Meyers 503 [71].
[18] Salapura v The Queen [2018] VSCA 255 [58]; R v De Simoni (1981) 147 CLR 383, 389; R v Newman and Turnbull [1997] 1 VR 146, 150; Bava v The Queen [2021] VSCA 34. Cf Elsayed v The Queen [2019] VSCA 113 [63]; R v Nobile [2006] VSCA 211 [8]; R v Henderson-Drife [2007] VSCA 211.
25Objectively, I assess your moral culpability as being relatively high however, your personal circumstances will operate to reduce this assessment, as I explain later in these reasons.
Application of mandatory non-parole period provisions
26Of particular significance in sentencing you for the offence of aggravated home invasion is the mandatory sentencing provisions which apply to the offence. Pursuant to s 10AC of the Sentencing Act 1991 (‘the Act’), in sentencing you for this offence I must impose a term of imprisonment and fix under s 11 of the Act a non-parole period of not less than 3 years unless the I find under s 10A of the Act that a special reason exists.
27Moreover, s 11(3) of the Act requires that a non-parole period must be at least six months less than the term of the head sentence. In other words, the minimum head sentence I can impose on you in this case is imprisonment for three years and six months, unless a special reason exists.
28At the plea hearing, neither your counsel nor the prosecutor submitted a special reason exists in your case, and I am satisfied none is established pursuant to one of the exceptions outlined in s 10A of the Act.
Personal circumstances
29Several reports have been provided to the Court and I have relied upon them when sentencing you.
30You were assessed by Dr Melisa Wood, a clinical and forensic psychologist, on 14 September 2021 and 20 September 2021 in relation to earlier offending. Dr Wood prepared a ‘Psychology Court Report’ dated 5 October 2021, which was tendered at the plea hearing by your counsel.[19]
[19] Ex D2.
31Later, you were interviewed by Dr Kate McGregor, clinical and forensic psychologist, on 9 August 2023 and I have considered the ‘Psychology Court Report’ she prepared dated 31 August 2023.[20]
[20] Ex D3.
32I have also relied upon a ‘Neuropsychological Assessment Report’ prepared by Dr Mathew Staois, a clinical neuropsychologist, on 15 August 2023, which was tendered by your counsel at the plea hearing.[21]
[21] Ex D4.
33You were born in the northern suburbs of Melbourne in October 1998. You were 23 years old at the time of the offending. You are currently 24 years of age.
34You are the youngest of six children and your parents are originally from Lebanon. You told Dr Wood that over the years you experienced ‘family drama’ and witnessed your parents fight and your father ‘bash’ your mother frequently. You told Dr Wood your father was always loving towards you, but you felt fear towards him owing to the violence and anger he directed at your mother. At one stage, your parents went four to five years without speaking to each other, even though they remained living in the same house because of concerns for community perceptions if they separated. However, you described your family to Dr Wood as now being close-knit and supportive.
35Not dissimilarly, Dr McGregor and Dr Staois noted the struggles you faced growing up in an unstable household with high levels of conflict and violence.
36Your older sister became a ‘second mum’ to you. Before your sister moved to Canada, when you were in your early teens, she would look after you whenever your parents fought. Your oldest brother moved to Lebanon where he married.
37Although you were close to you brother Adam, you did frequently argue. You reported feeling guilt and self-blame because your misbehaviour would often cause issues between your parents, leading to violence.
38You told Dr Wood that your father naturally ‘desisted from family violence’ as he reflected on religion and wanted to ‘leave things behind’. You and your brother, Adam, remain living in your parents’ home, while your older siblings are all married.
39You were supported in court during the plea hearing by two brothers, two sisters and your father and a brother and sister are present today.
Education and employment history
40You attended government local schools. You reported increasing academic difficulty due to your problems with attention and hyperactivity in class, however you were never formally assessed or diagnosed with attention deficit hyperactivity disorder (ADHD). In secondary school, as the work became more difficult, your academic focus worsened, and you began cheating. You engaged well socially but did describe anger-related issues from age nine and several suspensions as a result of frequent fighting with school peers. In Year 8, you were asked to move schools voluntarily or risk expulsion. You told Dr Wood that you felt guilty because your behaviour was impacting on your brother’s schooling and social life.
41At your new school, you attempted to surround yourself with good friends, but still felt dissatisfied and decided to befriend a wider group of people that included other ‘troublemakers’. You began sneaking out, engaging in some bullying behaviour and flirting with girls. Once your actions were discovered, you and Adam were placed in boarding school for a month. You repeated Year 9 because of the academic problems you were experiencing as a result of truancy.
42In Year 10 it was again suggested you move schools or face expulsion. You subsequently enrolled in a TAFE building and construction program. You were expelled from that course because of non-attendance, smoking cannabis, arguing with teachers and frequent physical fights.
43Since then, you have been employed briefly in the building industry, but this has been interrupted by time spent in custody and periods of non-attendance arising from your drug use. You told Dr McGregor that during periods of unemployment, you have funded yourself through Centrelink and criminal behaviour. According to the Dr Wood’s report, you spent time working in the remand centre, which you enjoyed, and you are eager to engage in sustained employment and continue to prove to yourself, and others, that you can be a reliable employee.
Substance abuse
44Your substance use commenced at an early age when you began experimenting with cannabis and stealing your parents’ cigarettes. At age 13 your cannabis use became a daily habit, and you consumed approximately seven grams per week. You began clubbing and partying using fake identification, taking cocaine, MDMA and other pills.
45You described to Dr Wood a bad experience you had with ‘dirty’ MDMA which resulted in you being unable to move for hours, which you believe has permanently affected your nervous system and is why you now perspire and become hot without cause. Your cocaine use became a ‘serious problem’ from age 15 to 18. You reported to Dr McGregor that you became ‘addicted to the buzz’ of cocaine and you would continue to use to avoid the low mood associated with the ‘come down’. You told Dr McGregor of two seizures you experienced at 20 years of age while using cocaine. You did not receive medical treatment.
46Your drug use continued, and you began to spend less time with your friends and more time with party drug users. Both Dr Wood and Dr McGregor noted that you engaged in criminal behaviour to fund your cocaine use. Eventually, your excessive use of cocaine created a hole in your nasal septum.
47Following your first period in custody, you moved to using crystal methylamphetamine (‘Ice’) because you were told of its popularity by your co-prisoners and because you were, ‘frying’ yourself on cocaine. To you, Ice was also less expensive but still gave you the same ‘buzz’. After about nine months, your usage increased from one gram to seven grams per day. You smoked Ice because you thought it provided a longer lasting high. However, you reported to Dr McGregor Ice exacerbated your anxiety. To treat your anxiety while using Ice and to manage your depression when ‘coming down’, you began using up to 30mL of GHB a day. You also continued to use cannabis to try and detox from other drugs when they ran out.
48You reported to Dr Wood that you felt shame and embarrassment for using Ice and began avoiding your cocaine-using friends and felt unable to go home and admit to being high. Instead, you always spent time with people who wanted to commit crimes. However, you did tell Dr Wood that you recognised that Ice was ‘a very ugly scene’, making you ‘think different’ and ‘act more aggressive’. According to Dr Wood’s report, Ice made you want to ‘do illegal stuff [and] disgusting things’ without delaying gratification.
49On a more positive note, Dr Wood observed that your abstinence in custody at the time of the report had helped you feel in a ‘better mindset’ and you are regretful of your drug use and of the relationships you missed out on.
Mental health
50In her report, Dr Wood summarised your upbringing and its effects on your development as follows:
He was raised in a household marked by serious family violence and marital conflict, and both parents were unable to provide sufficient love, attention, and guidance toward the younger children due to their older age and marital difficulties. He was raised by his siblings as a result, who themselves were struggling to cope with their mental wellbeing in the family environment and too young to hold this responsibility. As a result, his upbringing was largely unregulated, and both discipline and nurturance were inconsistent and likely confusing. From mid-childhood, he had increasing problems with anger, low mood, self-blame, and shame arising from his early trauma experiences. He struggled academically and behaviourally at school due to problems with attention and hyperactivity, leading to disrupted education and school disengagement. His behavioural and anger problems worsened without supportive intervention and he began fighting, truanting, using drugs, and associating with negative peers to distract him from his difficulties and alleviate his negative mood. He became increasingly reliant on substances to cope from a very early age. Indeed, the frequency and amount of cannabis, cocaine, and later ice use reflects a profound chemical and psychological dependence on drugs simply to function. Due to his shame and low self-worth, he is highly anxious in social settings and found it easier to engage and impress negative peers, particularly when reliant on drugs to socialise. It appears that he justified engaging in increasingly serious criminal activity in this context to support his substance dependence, fit in with his peers, and avoid the shame of returning to his prosocial supports whilst intoxicated.[22]
[22] Dr Melisa Wood, Psychological Court Report, dated 5 October 2021 (‘Wood Report’), pages 7–8, ‘Opinion and recommendations’ [3] (Ex D2).
51Later in her report, Dr Wood observed you experience ‘significant enduring problems with anxiety, shame, poor self-worth, low mood, and uncontrolled anger, all of which are common secondary complications to complex childhood trauma’.[23]
[23] Wood Report p 8 [4].
52Dr Wood very helpfully observed:
Early childhood trauma associated with family violence, unstable or absent parenting, and unsafe and unpredictable home environments commonly disrupts normal childhood social, emotional, moral, and cognitive development. Furthermore, undiagnosed and untreated attentional problems and impulsivity (such as attention deficit hyperactivity disorder) can often lead to early school disengagement, self-medication with illicit substances, and increasing behavioural difficulties.[24]
[24] Wood Report p 8 [4].
53Dr Wood’s provisional diagnosis that you meet the criteria for attention deficit hyperactivity disorder (ADHD) has been confirmed by Dr Staios, who considered your ADHD ‘falls within the moderate range’.[25]
[25] Dr Mathew Staios, Neuropsychological Assessment Report, dated 15 August 2023 (‘Staios Report’) p 6 [7.5] (Ex D4).
54As Dr Wood opined:
ADHD, coupled with emotional difficulties and delayed social development arising from his childhood trauma, contribute directly to his problems with behavioural impulsivity, lack of consequential thinking, poor problem solving and decision-making. These cognitive difficulties are likely to be compounded under heightened emotional arousal (anger, anxiety, depression) and substance intoxication.[26]
[26] Wood Report p 8 [4].
55Dr Wood diagnosed you as meeting the criteria for social anxiety disorder and general anxiety disorder and ‘very severe’ stimulant use disorder (now in early remission in the controlled prison environment). Whilst she considered you experience problems with depressed mood, Dr Wood did not diagnose you as suffering clinical depression.
56In relation to the effect on you of ‘early substance abuse’, Dr Wood opined:
[this] is known to impair neurocognitive development, which has potentially further delayed the natural development of his social, emotional, and moral maturity. In view of his early, prolonged, and excessive drug use, it is possible he exhibits cognitive deficits, warranting formal neuropsychological assessment.[27]
[27] Wood Report p 8 [4].
57As earlier noted, that neuropsychological assessment has now been conducted by Dr Staios who administered several standardised psychological tests to examine your current level of cognitive functioning. He concluded you performed within the borderline range or lower end of the low average range on most subtest levels.[28] Overall, your level of intellect was assessed to fall in the borderline range (73–83, 6th percentile).[29]
[28] Staios Report pp 4–6 [6.1–6.9 & 7.1].
[29] Staios Report p 5 [6.3].
58Dr Staios reported you displayed ‘notable weakness on task assessing abstract reasoning, indicating a tendency towards rigid thinking’ and you are ‘slow to process new information’. Your ‘capacity to take in and remember new information was well below expectations’.[30]
[30] Staios Report p 6 [7.2].
59Dr Staios opined:
Mr Moussa’s available history, including corroborative information provided by family members, indicates exposure to significant instability during early childhood, which manifested as childhood anxiety and the presence of attention deficit hyperactive disorder. A combination of these issues appears to have had a cascading affect and impacted on his academic learning; a factor that was very likely exacerbated as a result of no intervention being provided to support his early childhood development vulnerabilities. His untreated attention deficits and hyperactivity very likely impacted on his academic learning during early childhood and appear to have persisted into adulthood. The added impact of chronic substance use during crucial formative periods is likely to have further impacted on his cognitive development to varying degrees. In instance where Mr Moussa is acutely intoxicated, his intellectual abilities are highly likely to be further limited, which will further compromise overall cognitive skills. These aforementioned issues, in combination with a rigid thinking style and limited understanding of social norms, are likely to result in a reduced ability to monitor his actions and respond appropriately, rely upon consequential and alternative thinking skills, and effectively monitor his behaviours without support.[31]
[31] Staios Report p 6 [7.3].
60In addition to your limited cognitive skill set, Dr Staios further opined you have ‘integrated a number of maladaptive behaviours into [your] personality structure, in addition to those commonly noted in presentations of attention deficit hyperactivity disorder; including impulsivity, limited consequential thinking, and limited emotion regulation skills.’[32] He observed:
Mr Moussa’s available history indicates a tendency towards oppositional defiant behaviours throughout his early childhood and adolescence, including impulsive acts and limited emotion regulation. It is also important to consider the severity of his presentation in the context of his early development and expression of problematic behaviours which appear to be an ongoing feature of his clinical presentation.[33]
[32] Staios Report p 6 [7.4].
[33] Staios Report p 7 [7.5].
61In similar vein, Dr Wood opined:
Mr Moussa’s offending lifestyle developed in the context of his family and social background, and the resulting emergence of these mental health difficulties. That is, his pattern of disorganised acquisitive offending in the company and encouragement of peers has culminated from the combination of impulsivity and hyperactivity (restlessness, boredom susceptibility, constant need for external stimulation), cognitive difficulties (inattention, poor planning and problem-solving, lack of situational awareness, and impulsive decisions) and emotional difficulties (emotional avoidance, anger reactivity, social anxiety, low self-confidence). These factors are further exacerbated by heightened anxious states, imminent social pressures, or anger, and even further exacerbated by substance intoxication or withdrawal.
62In his report, Dr McGregor echoed Dr Wood’s report, describing your longstanding problems with anger, depressed mood and anxiety. You reported to her that you experience bouts of depressed mood characterised by feelings of guilt and anger towards yourself, social withdrawal and sleep disturbance that last up to one week. You also experience chronic anxiety and frequently worry about past behaviour, what God thinks of you and about marrying and having children.
63Dr McGregor’s own assessment of you was consistent with a diagnosis of ADHD. She also considered you met the diagnostic criteria for generalised anxiety disorder, social anxiety disorder and stimulant use disorder – severe – in early remission in a controlled environment.[34] She opined:
Mr Moussa also presented with an emotionally sensitive temperament from early childhood. The combination of his neurodevelopmental vulnerabilities, emotionally sensitive temperament, lack of emotional support and high levels of conflict and violence in the home contributed to behavioural disturbance and emotional distress in childhood. … Further, his undiagnosed likely ADHD appears to have had a significant impact on his academic functioning leading to dislocation from more pro-social peers and pursuits.[35]
[34] McGregor Report p 7 [28]–[29].
[35] McGregor Report p 7 [28].
64Despite your mental health and personality conditions, Dr Wood observed you have not had a substantial period of mental health treatment. As a condition of a youth justice order you were referred to a forensic psychologist, Mr Bilyk, but only attended five to six monthly sessions before being remanded in 2019. You also had drug and alcohol counselling and mental health conditions on a number of CCOs, but these referrals did not commence prior to a period of remand because of, as Dr Wood described it, your ‘chaotic lifestyle, tenuous engagement with supervision, and the service impact of COVID-19’.[36]
[36] Wood Report p 4 [11].
65Dr Wood did note that you were open to engaging in treatment to learn adaptive coping skills but felt that this was not necessary so long as you remained focused on your religion and on family. The reports also suggested there may be cultural barriers to accepting psychological service support.
66At the further plea hearing on 20 September 2023, following the receipt of Dr McGregor’s and Dr Staios’s reports, your counsel accepted no Verdins principles[37] are engaged in your case. However, as I explain later in these reasons for sentence, Bugmy principles[38] are very relevant in sentencing you.
[37] R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
[38] Bugmy v The Queen (2013) 249 CLR 571.
Risk assessment
67Dr Wood conducted a risk assessment of you in October 2021 using the Level of Service/Risk, Needs, Responsivity (LS/RNR) tool and assessed your risk of general recidivism as falling in the ‘very high risk/need category’.[39] Dr Wood observed you remain ‘a high risk for substance relapse and susceptibility to peer influence in future, and ultimately therefore, further offending to support [your] lifestyle’.[40]
[39] Wood Report p 7 [1].
[40] Wood Report p 9 [6].
68Dr Wood opined:
It is important to stress that Mr Moussa’s attentional problems, behavioural dysregulation and poor distress tolerance are such that he lives moment-to-moment and is unable to delay gratification or sustain motivation in the face of temptation or triggers, such as peer influence or intolerable internal states (including boredom).[41]
[41] Woods Report p 10 [7e].
69I note the present offence was committed by you less than four months after your release from custody in relation to a number of dishonesty, drug related and driving offences, and while you were serving a CCO. You told Dr McGregor you had relapsed into substance abuse two months after your release from custody and you were mixing with criminal associates.
70Dr McGregor also administered the LS/RNR and assessed you as having a ‘very high risk of general reoffending’.[42] However, she noted the presence of a number of ‘protective factors’ as follows:
He impresses as having a genuine motivation to refrain from future offending and substance abuse (although it is noted that his index offence occurred following a reported enhanced motivation to cease offending). He reports that his faith motivates him to pursue a more prosocial lifestyle and his attitudes are not inherently antisocial. He has access to a stable living situation and opportunities for paid employment with his family. His family are broadly pro-social and supportive of his rehabilitation and have been able to provide increased support in recent years in contrast to during his childhood.[43]
Prior criminal history
[42] McGregor Report pp 7 [26], 8 [31].
[43] McGregor Report 8 [32].
71You have an extensive prior criminal history commencing in August 2016, when you were 17 years old, when you appeared in the Melbourne Children’s Court on 35 charges relating to mostly dishonesty offences, including six counts of burglary. Other charges related to property damage, assault and resist police, affray and making a threat to kill. Without conviction, you were placed on a youth justice probation order for ten months.
72You first appeared in court as an adult in 2017 on charges of assaulting and resisting emergency workers, making a threat to kill, driving-related offences and other offences. Without conviction, you were placed on a nine-month community correction order (‘CCO’) and ordered to pay an aggregate fine of $250.00. You breached that CCO by further offending and it was extended for a further nine months. In April 2019, that CCO, and a further CCO you received in March 2018 for assaulting and resisting police officers and other offences, were also breached by further offending and you were sentenced to two months’ imprisonment and fines totalling $1400.00.
73Since April 2019, you have appeared in courts on four occasions (not including County Court appeal hearings) for a range of offences, including burglary, theft and negligently dealing with proceeds of crime, assault and resist offences, drug offences, Bail Act offences and driving offences. You have been variously sentenced to CCOs, which you breached by reoffending, and sentences of imprisonment ranging from two months and 14 days to nine months, which you received from his Honour Judge Johns of this Court[44] for a ‘commercial burglary’, criminal damage and theft on 23 October 2019. The total value of the items stolen was $183,292 with a retail value of $209,760. You were on bail at the time of committing those offences. His Honour described the offending as being ‘extremely serious’.[45]
[44] See DPP v Moussa [2019] VCC 2065 (Judge Johns).
[45] Ibid [28].
74I accept your counsel’s submission the present occasion is the first time you have been in the County Court for such a serious charge. I also accept the longest term of imprisonment that previously has been imposed on you is nine months and you have not had a non-parole period fixed before. This is presently the longest period you have been in custody and it will be the longest sentence of imprisonment you will have served upon the completion of your sentence.
Time in custody
75You have turned to religion in order to provide you with structure and relief during your time in custody. You expressed a desire to Dr Staios to continue engaging with your religion and you expressed an interest to attend your local Mosque following release from custody.[46] I accept, as Dr Staios opined, that the ‘added support of religious leaders and partitioners from [your] cultural background/religious affiliation may serve to further assist with moderating [your] level of risk moving forward by way of strengthening [your] relationships with prosocial peers.’[47]
[46] Staios Report p 7 [7.7].
[47] Staios Report p 7 [7.7].
76It appears you have remained drug free whilst on remand. Apparently, this is the first time you have remained drug free when in custody. You are presently prescribed buprenorphine injections.
77You reported to Dr McGregor that you are coping much better during the current incarceration than in the past and you denied safety concerns or interpersonal difficulties, noting that you have been placed in a setting with more individuals from a similar cultural background.
78Dr McGregor opined:
With respect to incarceration, Mr Moussa appears to have coped relatively well during this episode of incarceration and indeed, reports he is coping better than during his previous incarceration. He is receiving antidepressant medication and described a stable mood. He also reported feeling more comfortable with peers in his current setting. … Regardless [of the reasons], these issues [involving significant interpersonal difficulty] do not appear to be present during his current incarceration likely by virtue of a combination of being in a different prison environment, some improvement in his mood, and an enhanced motivation to avoid interpersonal conflict. ADHD is a lifelong condition and so unlikely to worsen in a prison environment. Generalised Anxiety Disorder and Social Anxiety Disorder are both also chronic conditions. Symptoms of Generalised Anxiety Disorder tend to worsen in response to stressors, such as court, which Mr Moussa will likely be exposed to regardless of setting. Mr Moussa’s social anxiety symptoms may be exacerbated when he is abstinent from substance abuse, but this does not represent a worsening of his condition.
79Accordingly, I am satisfied that Verdins principles 5 and 6 are not engaged in your case.[48]
[48] R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
80Material was placed before me regarding the efforts you have made towards your rehabilitation mostly whilst you have been in custody on remand for the present offence, but also during earlier periods of incarceration. According to your Prisoner Education Summary Report, whilst in custody you have completed units towards the following qualifications:
(a) Certificate I in Access to Vocational Pathways.
(b) Certificate I in General Education for Adults.
(c) Certificate II in Applied Digital Technologies.
(d) Certificate II in Information, Digital Media and Technology.
(e) Certificate II in Kitchen Operations.
(f) Certificate II in Cleaning Operations.
(g) Certificate III in Entrepreneurship and New Business.
(h) Education Services.
(i) Victorian Certificate of Applied Learning (Intermediate).
81Additionally, you have applied to become a paid educational student and a peer educator and, I am told, you are on the waitlist for these positions.
82These energetic and sustained activities auger well for your future prospects of rehabilitation. However, as I noted earlier, much will depend on you remaining drug free upon your release from custody and on you disassociating from previous anti-social and criminal peer influences.
Mitigating circumstances
Timing of the guilty plea, remorse, and custodial hardship
83You pleaded guilty to the present charge before me on 3 July 2023 following a sentence indication hearing. While this is a relatively late plea, I accept it has utilitarian benefit, particularly in the COVID-19 environment.[49] Importantly, you have saved witnesses the trauma of giving evidence in court. Your plea also indicates your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
[49] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [22], [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
84Moreover, in light of the material contained in your brother Rashed’s ‘character reference’,[50] I am willing to accept you are exhibiting some degree of genuine contrition and remorse for your offending conduct and beginning to develop insight into the causes of your criminal behaviour. Your brother speaks of you undergoing ‘a profound transformation’ while on remand and of your mother’s role in helping you by ‘introducing [you] to the teachings of Islam and the principles of restitution and justice’.
[50] Letter from Rashed Moussa dated 12 September 2023 (Ex D6).
85Hopefully, you are turning a corner in your life but only time will tell. Clearly you have strong family support, which is protective factor.
86You have been remanded in custody for 601 days to date and much of this time has been spent in COVID-19 conditions. This has limited your ability to have contact with your family. This means the time you have already spent in custody has been more onerous on you than it otherwise would have been.[51] I also accept you will experience a greater level of custodial hardship as a result of COVID-19 restrictions which apply to all prisoners in this State for the foreseeable future.
[51] See e.g., The Queen v Madex [2020] VSC 145 [52] (Incerti J); R v Kelso [2020] NSWDC 157 [45] (Norrish QC DCJ); Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA); Astbury v The Queen (No 2) [2020] VSCA 158 [33] (Kaye, Niall and Weinberg JJA).
Youthful offender
87Your age is a significant sentencing consideration. At 24 years of age, you are a youthful offender. As a general rule, the paramount sentencing consideration for youthful offenders is rehabilitation and this is usually more significant than general deterrence.[52] However, when sentencing you I must still balance your age and prospects for rehabilitation against the seriousness of the offence.
[52] R v Mills [1998] 4 VR 235, 241; Balshaw v The Queen [2021] VSCA 78, [54]–[57].
88In Balshaw v The Queen,[53] Kaye and Forrest JJA expressed the principles that apply to youthful offenders as follows:
The particular weight to be accorded to the youth of an offender must depend on the circumstances of the case. In that respect, it is recognised that as the level of seriousness of criminality increases, there will be a corresponding reduction in the mitigating effects of the offender’s youth. Similarly, where the offence is one which is commonly committed by young offenders, the youth of the offender in question may need to be accorded less weight as a mitigating factor, in order to ensure that the sentencing principles of general deterrence and specific deterrence be given sufficient weight.[54]
[53] [2021] VSCA 78.
[54] Ibid [56] (citations omitted).
89The mitigatory effect of your youth, while still significant, is lessened by reason of the objective seriousness of the offence of aggravated home invasion and the need to give significant weight to general deterrence, denunciation and just punishment.
Socially disadvantaged background
90Your counsel submitted because you come from a socially disadvantaged background and suffered a significant level of childhood derivation and trauma, the principles adumbrated by the High Court of Australia in Bugmy v The Queen[55] are engaged. I accept they are.
[55] (2013) 249 CLR 571 (‘Bugmy’).
91In Marrah v The Queen (‘Marrah’),[56] the Victorian Court of Appeal confirmed the relevance of a disadvantaged background, stating that:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences…Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.[57]
[56] [2014] VSCA 119 (‘Marrah’).
[57] Marrah [16] (Redlich and Tate JJA) citing Bugmy [24].
92Importantly, the Court held in Marrah that when sentencing an offender, the court should not consider that an ‘offender’s social disadvantage has the same mitigatory relevance for all of the purposes of punishment’.[58] Moreover, social disadvantage does not ‘diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending’.[59]
[58] Ibid.
[59] Ibid.
93When discussing the Bugmy principle in Newton v The King (‘Newton’),[60] the Victorian Court of Appeal said:
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[61]
[60] [2023] VSCA 22 (‘Newton’).
[61] Newton [36]-[37] (Beach and Macaulay JJA).
94That Court further observed in DPP v Herrmann:[62]
The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. ... ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’. The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’ reflects the principle of equal justice.[63]
[62] [2021] VSCA 160.
[63] Ibid [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA). See also Jawahiri v The Queen [2021] VSCA 287 [73(s)] (Priest and T Forrest JJA).
95In applying the Bugmy principle, I do not need to find the disadvantage you suffered was ‘profound’. In Sabbatucci v The Queen (‘Sabbatucci’),[64] the Victorian Court of Appeal said that the sentencer must evaluate whether the disadvantage warrants the offender being viewed as ‘less morally blameworthy’ than someone who commits the same offence but does not have the same disadvantaged or deprived background.[65] According to Sabbatucci, coming to this conclusion does not depend on being satisfied that the circumstances establish ‘profound disadvantage’ or ‘profound deprivation’ because in every case, ‘it will be a question of fact and degree’.[66]
[64] [2021] VSCA 340 (‘Sabbatucci’).
[65] Ibid [22] (Maxwell P and Emerton JJA).
[66] Ibid.
96I have been greatly assisted by Dr Wood’s detailed explanation of how your social disadvantage and untreated ADHD have adversely affected you throughout life and have led you to the be in the situation in which you currently stand.
97You have been exposed to, and are a victim of, violence in the home and your upbringing has been deeply affected by the abuse you witnessed by your father. As Dr Wood noted early childhood trauma associated with family violence, unstable or absent parenting, and unsafe and unpredictable home environments ‘commonly disrupts normal childhood social, emotional, moral and cognitive development’. Your emotional difficulties and delayed social development arise from your childhood trauma and directly contribute to your poor decision making, impulsivity, heightened levels of anger, anxiety and depression and substance abuse.
98It is clear the violence you experienced and witnessed as a child led to your engaging in a criminal lifestyle and has contributed to the circumstances surrounding your commission of a number of offences, including the present offence. Your deprived background remains relevant when determining the appropriate sentence, notwithstanding your history of prior offending.[67]
[67] Bugmy 594–595 [43]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); cf 598 [56] (Gageler J).
99While these personal factors require me to moderate the weight I would otherwise have given to general deterrence, denunciation, and the punitive aspects of the sentence I impose on you, these complex factors also feed into the weight I need to give to specific deterrence and protection of the community in sentencing you. Because you are a person who is not easily specifically deterred, who lacks insight into the causes of your offending conduct and who has a very high risk of general reoffending, I must give significant weight to specific deterrence and protection of the community in sentencing you. Moreover, I can only assess your prospects of rehabilitation as being very problematic. Much will depend on the support you receive upon your release from custody and your willingness and ability to remain free from illicit substances.
100Moreover, your childhood deprivation, being somewhat causative of the present offending, means the level of your moral culpability is somewhat reduced, albeit it remains reasonably high. Whilst you are predisposed to being easily led astray by others of a criminal milieu, you undoubtedly knew what you were doing was wrong but went ahead with the crime, nonetheless. Clearly, your drug abuse also played a very significant part in motivating you to commit this crime.
Application of sentencing principles
101I have had regard to current sentencing practice in relation to this offence as informed by the decisions of the High Court of Australia in R v Kilic[68] and DPP (Vic) v Dalgliesh (a Pseudonym)[69] and the Victorian Court of Appeal decisions in DPP v Zhuang[70] and DPP (Cth) v Thomas.[71] Specifically, I have considered the so-called ‘comparable cases’ I was referred to by the prosecutor[72] and the relevant sentencing snapshot.[73]
[68] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[69] (2017) 262 CLR 428, 444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[70] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[71] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
[72] Dean v The Queen [2020] VSCA 100 (Beach, Kaye and Weinberg JJA); DPP v Wol [2019] VSCA 268 (Kryou, Kaye and T Forrest JJA); Sikoulabout v The Queen [2018] VSCA 268 (McLeish and Niall JJA); DPP v Abela-Rogers & Anor. [2020] VCC 1412 (Judge Gwynn).
[73] Victoria, Sentencing Advisory Council, SACStat, ‘Aggravated home invasion Crimes Act 1958 (Vic) s 77B(1) Sentencing outcomes in the higher courts, 1 July 2016 to 30 June 2021.
102While current sentencing practice is relevant to the sentence I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[74]
[74] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
103Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
104The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, the effect of your offence on the victims and your personal circumstances.
105In sentencing you for this crime I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
106So far as parity is concerned, I have had regard to the sentence imposed on your co-offender Richard Markhail. Markhail was sentenced by her Honour Judge Chambers on 20 September 2023.[75] On the charge of aggravated home invasion, he was convicted and sentenced to imprisonment for five years and six months. Her Honour fixed a minimum non-parole period of three years and four months.
[75] DPP v Markhail [2023] VCC 1702 (Judge Chambers) (‘Markhail’).
107The objective serious of Markhail’s offending conduct is very similar to yours. However, your moral culpability is reduced by reason of the application of Bugmy principles as discussed above.[76]
[76] Above [100].
108While the objective seriousness of your offending is similar that of Markhail, there are notable differences in your respective personal circumstances.
109Markhail was aged 25 at the time of the offending and 27 years old at the time of sentence. While it was argued Markhail remained a youthful offender and that his rehabilitation should be given significant weight, her Honour Judge Chambers remarked that he ‘could not be described as a particularly youthful offender’ and only gave limited weight to his age at the time, particularly due to the gravity of the offending.
110Markhail’s criminal history was also relevant and extensive, dating back to 2013 when he was sentenced as a child. As an adult, he had been sentenced to various periods of imprisonment, as well as four CCOs between 2015 and 2021. He breached every CCO imposed. His past offending included multiple drug related offences, including trafficking cocaine, as well as other dishonesty and driving offences. Against this is to be balanced your serious prior conviction for burglary dealt with by his Honour Judge Johns in October 2019.
111In sentencing you, I must have regard to the fact that by your guilty plea to the charge as particularised on the indictment you admit knowing Markhail was armed with an imitation firearm at the time of entry. However, her Honour Judge Chambers was not prepared to make that finding in sentencing him for this offending. Nonetheless, her Honour remarked that Markhail had previously been convicted of possessing weapons and weapons-related offences. He was also subject to a firearm prohibition order.
112The totality principle played a very significant role in sentencing Markhail. Particularly relevant to its application in his case was the circumstance he had been sentenced on 11 March 2022 to 21 months’ imprisonment, with a non-parole period of 12 months, for his role in an affray and for recklessly causing injury. He had remained in custody on remand and serving that sentence since that date. Accordingly, only 119 days pre-sentence detention could be declared in his case in relation to the current offending. As her Honour observed: ‘totality is best reflected in a moderate reduction in your head sentence, and by fixing a non-parole period that is not as lengthy as I would otherwise have considered appropriate’.[77]
[77] Markhail [80]–[81].
113It is true you have served a sentence of two months’ imprisonment whilst on remand for this offence, imposed for unrelated offending in March 2022 which, being time ‘warranted twice over’, I will take into account in a broad way in sentencing you.[78]
[78] See Wheldon v The Queen (2011) 31 VR 297, 300–303 [18]–[34] (Tate JA, Nettle and Neave JJA agreeing).
114Her Honour Judge Chambers took into account the fact Markhail had been stabbed eight times by another inmate whilst in custody and had spent time in the prison infirmary. The prison authorities moving him through various management units to protect him against further attacks had added considerably to the burden of imprisonment on him. This incident also led to a significant decline in Markhail’s mental health, resulting in his suffering post-traumatic stress disorder and major depression with anxious distress. Accordingly, her Honour found that Verdins principle 5 was enlivened in Markhail’s case.
115Her Honour also had regard to Markhail’s borderline to low average intellectual functioning, and its impact on his decision-making, to moderate the sentence she imposed.
116Whilst your personal circumstances differ considerable from Markhail’s, there are some similarities, and you can both call upon very significant matters in mitigation of penalty.
117Balancing all sentencing considerations as best I can, I have decided to impose a sentence on you very similar to the sentence imposed on Markhail.
Mr Moussa
On the charge of aggravated home invasion (Charge 1) you are convicted and sentenced to five years and six months’ imprisonment.
I order you serve a minimum of three years and five months’ imprisonment before being eligible for parole.
I declare 540 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the Court.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to seven years’ imprisonment with a minimum non-parole period of five years.
I will make the disposal order sought by the prosecution by consent.
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