Director of Public Prosecutions v Murad
[2014] VCC 165
•25 February 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01342
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN MURAD |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2014 | |
DATE OF SENTENCE: | 25 February 2014 | |
CASE MAY BE CITED AS: | DPP v Murad | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 165 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – theft – attempted armed robbery – various summary offences.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Sentence: Total effective sentence 2 years and 3 months’ imprisonment. Non-parole period 16 months. Section 6AAA declaration 3 years’ imprisonment with non-parole period of 2 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Ayres | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R Chaudhuri | Melasecca Kelly & Zayler |
HIS HONOUR:
1 Benjamin Murad, you have pleaded guilty to:
(a) two charges of theft of a motor vehicle, the maximum penalty for each being 10 years’ imprisonment;
(b) one charge of attempted armed robbery, the maximum penalty for which is 20 years’ imprisonment;
(c) one summary charge of failing to report an accident to the police, the maximum penalty for which is 14 days’ imprisonment or 5 penalty units;
(d) one summary charge of possessing a prohibited weapon, namely, an imitation handgun, the maximum penalty for which is two years’ imprisonment;
(e) one summary charge of driving while your licence was suspended, the maximum penalty for which is four months’ imprisonment or 30 penalty units.
Circumstances of offending
2 The circumstances of your offending are set out in the Prosecution opening, which I adopt.
3 On a date between 28 December 2012 and 4 February 2013, you stole a Toyota motor vehicle.
4 On 26 February 2013, you stole a BMW motor vehicle. That same day, you drove the stolen vehicle on the inside of a vehicle driven by another driver, causing the vehicle you were driving to strike a parked truck. It appears that you took the view that somehow the collision was the fault of the driver of the other vehicle. You produced a black imitation handgun and pointed it at the victim. From the photographs tendered,[1] the handgun appeared very real.
[1]Exhibit C
5 The victim attempted to drive away but you cut him off and, eventually, you got out of your vehicle with your hands in the pockets of a hooded jumper. I accept that the victim genuinely believed that you had the firearm in one of the pockets. You told him that the collision was his fault and that you required him to produce $5,000 in cash to pay for the repairs and towing. You got into his vehicle and directed him to drive to a bank in Glenroy. Throughout this time, the victim was terrified and went along with your demands. He alerted the bank staff to his predicament and he was escorted to an office inside the bank. You observed police in the vicinity and immediately left.
6 The imitation handgun was subsequently located in the boot of your vehicle, although it is quite reasonable to accept the victim believed that you had it with you when you approached his vehicle and got in.
7 At the time of this offending, you were been on bail for a period of approximately four weeks, and were arrested on 27 February 2013 when reporting on bail for the earlier offences.
8 When questioned by police, you said that the accident was the victim’s fault, that he had offered to pay for the repairs, and you denied having a firearm. You admitted the vehicle you were driving had been stolen and admitted the theft of the Toyota vehicle.
9 You remained in custody from that date until 17 July 2013, when you were released on bail.
10 In July 2013, there was a contested committal and the victim was cross-examined. Your plea of guilty was entered on 9 October 2013. It is conceded that while the plea was not entered at an early part of the proceeding, it was entered well before trial.
Impact of your offending
11 I have read the Victim Impact Statement. The victim described that even six months after the incident, he was still extremely anxious and concerned to ensure that windows and doors at home were locked. The experience affected his relationship with his partner and children, which required relationship counselling. He had a number of sessions with a psychologist and was away from work for two days. On any view, his experience was a frightening and disturbing one.
Matters personal to you
12 You are now 25 years of age and were 24 at the time of offending.
13 According to the report of Ms Pamela Matthews, forensic psychologist, you grew up in a household where your father was regularly drunk and physically abusive to your mother and your sister. Your father left home when you were 16, and an attempt to reconcile that relationship failed. You attended school to Year 11 and were an average student. After finishing school, you attempted a carpentry apprenticeship, but did not complete it. You have worked in cafés, in sales, and laboured for an electrician.
14 According to a reference from Mr Husseyin Tok, a former employer, you had a good work ethic and interacted well with clients. He said that you had some difficult times but had recently made positive changes in your life. According to your counsel, you have continued voluntary work with Mr Tok after your release upon bail, and there is the prospect of work with him in the future.
15 You commenced using illicit drugs at age 17, including cannabis, methylamphetamine (Ice) and Xanax. You have used drugs from that time through to the time of your offending. Your counsel indicated that at the time of the attempted armed robbery, you were significantly affected by Ice. This type of violent and bizarre behaviour by persons using Ice is, sadly, regularly seen in these courts.
16 Since being in prison, before being released on bail, you ceased drug use and have not used drugs through to the present time. That claim is supported by screen tests conducted up to October 2013.
17 According to the report of Ms Matthews, you found the four months in jail prior to your release difficult, and that had a particular effect upon you. You felt intimidated, fearful, and struggled to cope emotionally. The environment of the prison reminded you of the violence of your father, and it was said that you were in a constant anxious state. Ms Matthews said that should you be jailed for any further period, you would find time in prison more difficult because of the various emotional vulnerabilities. She described you as immature and with borderline cognitive impairment. She detected deficits of attention, memory and abstraction, suggestive of an Acquired Brain Injury, Attention Deficit Disorder or Post-Traumatic Stress Disorder, although did not make a diagnosis of any of these conditions. I accept that these emotional difficulties would make it more difficult for you to cope in prison.
18 Ms Matthews said the emotional turmoil of your childhood and family dysfunction was directly linked to your drug use. She said that you would require counselling on a regular basis and, by the time she saw you in October 2013, you had realised the seriousness of your offending.
19 Since July 2013, you have remained living with your family, who are supportive and who were present in Court. Your relationship with your mother has improved and become stable, given you are now drug-free.
20 On other unrelated charges, you were made the subject of a Community-Corrections Order and, according to a report of your Corrections officer, you were described as not having any current mental health issues, although you had engaged with Ms Carly Cameron, psychologist, on a number of occasions. You had been compliant with the directions and were completing unpaid community work. According to the report of Ms Cameron, you were suffering anxiety and depression. She said that you would benefit from ongoing psychological support.
21 According to a report from Pastor Jamil Sarraf of your local Baptist church, you have shown shame and remorse for your offending. He referred to your troubled teenage years, in particular the drinking and abuse by your father. He said he would continue to support you into the future.
22 You have completed various courses in hospitality and warehouse operation.
23 According to your counsel, your time in prison has had a very dramatic effect upon you. It has made you aware of the seriousness of your offending. It has caused you to cease completely the use of illicit drugs, and to change your life around.
Prior offending
24 In the Magistrates’ Court in October 2011, you were convicted of various offences including possession of prohibited weapons and cartridge ammunition, and possession and trafficking in methylamphetamine. You served 25 days’ imprisonment and were placed upon a Community-Corrections Order for 18 months. Although not relevant as prior convictions, you were before the Melbourne Magistrates’ Court in November 2013 and pleaded guilty to various charges relating to theft of a motor vehicle and dishonesty offences. You were also convicted of possessing a firearm. As noted, at the time of this offending, you were on bail in respect of those charges. That is clearly an aggravating feature.
Sentencing considerations
25 The purposes for which a court may impose a sentence are:
· punishment – to an extent and in a manner which is just in all the circumstances
· deterrence, both specific and general
· rehabilitation
· denunciation and/or protection of the community.
26 In sentencing you, I must have regard to a range of matters such as the seriousness of the offending and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
27 You have pleaded guilty and are entitled to have that fact taken into account in your favour. I accept that your plea of guilty evidences some remorse. Although not made at an early time, it was made well prior to trial, and you have spared the witnesses the inconvenience and ordeal of giving evidence at trial.
28 Given your age, rehabilitation is an important sentencing factor. You have a relatively limited prior criminal history, although it is of concern that in 2011, you were convicted of offences relating to firearms.
29 I am satisfied from the report of Ms Matthews that there is a clear link between your drug use and offending. It is essential for your rehabilitation that you obtain treatment and remain drug-free. If you are able to do so, then the prospects of your rehabilitation and reintegration into society are reasonable. It remains to be seen whether you will be able to continue your drug abstinence.
30 I have taken into account your fractured and violent teen years. You were yourself the subject of abuse by your father and, like many others in the community who suffer such abuse, turned to drugs as a means of self-medication. I accept that the period of imprisonment which you have already undertaken has had a significant effect upon you and, to some extent, made you aware of the serious consequences which result from such offending.
31 The circumstances surrounding the attempted armed robbery are particularly serious. You subjected the victim to a violent and terrifying episode, which continued over a significant period of time. I reject the contention of your counsel that there was no continuity of the threat of the firearm. Once the very real imitation handgun was pointed at the victim, it was perfectly reasonable for him to think that you remained in possession of it during the course of the journey to the bank, and he was in fear and trepidation that you might use it upon him. Further, the offending occurred in broad daylight, on a public street, and in circumstances where the victim is likely to suffer emotional consequences for a considerable period.
32 However, I accept that the episode involved no specific violence and was not pre-meditated. Rather, it was opportunistic and spontaneous.
33 Your counsel has urged that you suffer no further period of incarceration, but that the present Community-Corrections Order be substituted or extended on further conditions. In my view, such a course does not reflect the gravity of the crimes that you have committed.
Sentence to be imposed
34 Taking into account all of the matters to which I have referred, I impose the following sentence.
35 On Charge 1, theft of a motor vehicle, you are convicted and sentenced to a term of imprisonment of three (3) months.
36 On Charge 2, theft of a motor vehicle, you are convicted and sentenced to a term of imprisonment of three (3) months.
37 On Charge 3, attempted armed robbery, you are convicted and sentenced to a term of imprisonment of two (2) years.
38 On Charge 4, failing to report to police, you are convicted and discharged.
39 On Charge 7, possession of a prohibited weapon, you are convicted and sentenced to a term of imprisonment of three (3) months.
40 On Charge 8, drive a motor vehicle while your licence was suspended, you are convicted and discharged.
41 In determining whether to order any period of cumulation, I take into account that the theft of the first motor vehicle was committed on a separate occasion. Further, given that possession of the firearm is a serious offence, total concurrency would fail to do justice. I direct that two (2) months of the sentence imposed in respect of charge 1, and one (1) month of the sentence imposed in respect of summary charge 7 be served cumulatively upon the sentence imposed in respect of charge 3, the base charge, and upon each other charge. That results in a total effective sentence of two (2) years and three (3) months' imprisonment.
42 Given your youth, the need for ongoing psychological treatment for drug abuse, a longer period on parole will enhance your prospects of rehabilitation. I direct that you serve a minimum period of sixteen (16) months’ imprisonment before becoming eligible for parole.
Pre-sentence declaration
43 Pursuant to s18(4) of the Sentencing Act 1991, I declare that the period of 141 days is to be reckoned as a period of imprisonment already served under this Sentence, and I direct that this declaration and its details be noted in the records of the Court.
Section 6AAA of the Sentencing Act 1991
44 Pursuant to s6AAA of the Sentencing Act, I state that but for your plea of guilty, I would have imposed a total effective sentence of three years’ imprisonment with a non-parole period of two years.
Ancillary orders
45 I shall make the Disposal Order as sought by the Prosecution in relation to the items referred to in the schedule. The order is not opposed. Yes, do you have a copy of the Disposal Order.
46 MS CRENKOVIC: I do, Your Honour.
47 HIS HONOUR: Have a seat. I will return those to you. Anything further. Mr Chaudhuri?
48 MR CHAUDHURI: Nothing, Your Honour. I don't have any custody management issues that Your Honour has not already covered. Your Honour, may I just take brief instruction from my client.
49 HIS HONOUR: I am happy to give you time to speak to your client after I leave the Bench. Do you need to do that before I leave the Bench.
50 MR CHAUDHURI: No, Your Honour, that would be sufficient.
51 HIS HONOUR: Thank you. To the Prison Officer, if you will let the accused have some time with his family and counsel before being escorted.
- - -
0
0
0