Director of Public Prosecutions v Nosrati

[2020] VCC 986

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00953

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMMAD NOSRATI

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	30 June 2020
DATE OF SENTENCE:	2 July 2020
CASE MAY BE CITED AS:	DPP v Nosrati
MEDIUM NEUTRAL CITATION:	[2020] VCC 986

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Piper	Office of Public Prosecutions
For the Accused	Mr L. Barker

HIS HONOUR: 

1Mohammed Nosrati, you are to be sentenced for one charge of armed robbery. The maximum sentence is 25 years' imprisonment. 

2You pleaded guilty in this court on 15 June.  You declined  police interview in 2018.  You were, at that time, serving a sentence of imprisonment I imposed, also for armed robbery,  in January 2018.   After committal the matter was resolved in this court, and as stated, you pleaded guilty. 

3You receive the benefit of your plea of guilty.  It has facilitated the interests of justice and I accept that you have become remorseful.

4This is an unusual case.  On 25 January 2018, I sentenced you,  primarily for three armed robberies committed in late June and early July 2016.  I imposed individual sentences of three and a half, three and two and a half years, with partial accumulation a total sentence of four and a half years,  setting a minimum term before eligibility for parole of two and a half years.  There were other concurrent sentences for less serious offences committed at the same time.   This offence before me today was an armed robbery committed in what can be described as similar circumstances in late May 2016 approximately one month before. 

5The delay in charging you was explained to me.  It has been caused because DNA comparison was only made available after my January 2018 sentence.  There followed not unusual;  but,  in this case, regrettable procedural delays.  They were not your fault. 

6At your recent 30 June 2020 plea hearing, Ms  Sheridan-Smith for the Crown tendered a written Crown opening and the victim impact statement of Rebecca Pearce.  Mr Barker, for you, tendered the Forensicare psychiatric reports of Dr Gunvant Patel and Dr Adam Deakin, dated 7 August and 15 November 2017; the report of psychiatric nurse, Jan Cheslin, dated 5 July 2016; certificates related to rehabilitation and educational programs undertaken by you in prison; negative drug screen results,  also taken in prison; and the notification of cancellation of your protection visa, dated 20 July 2016.  Some of this material, the medical evidence, was before me when I sentenced you in January 2018. 

7Mr Barker provided a written outline of plea submissions. 

8The armed robberies for which you were sentenced two and a half years ago were committed upon taxi drivers in the Doveton and Dandenong area.  This armed robbery, now before me, was similarly serious but committed against retail assistant, Rebecca Pearce, at a Dandenong store.  It was at 7.30 pm, dark,  and Ms Pearce was by herself.  You brandished a 35 centimetre knife.  Displaying remarkable resilience and courage, despite being very frightened, Ms Pearce activated an alarm and threw a DVD case at you.  You had grabbed about $160 in cash.  You swiped at,  or at least toward her, as you ran out.  It was after,  that Ms Pearce realised she had a minor scratch or cut on her arm.

9Her Victim Impact statement is a modest account of the effect upon her.  I am able to read it in full and I quote.   

'The emotional impact this crime has had on me has affected me greatly in my workplace.  If a customer comes into the store in a hurry I feel myself tense up and I feel nervous and anxious.  This had never been an issue before this crime happened.  I have always been bright and bubbly at work.  If anyone comes in with their face covered or their hoodie pulled over a bit too much, I am nervous and cautious around them.  I was never that way before.  I miss how I used to be as a retail assistant before this crime happened.' 

10Bearing in mind the similarity in time and circumstances of this offence with the offences for which you have been sentenced, it is appropriate that I repeat what I stated in respect of your situation and other relevant matters in giving that January 2018 sentence.  I quote: 

11'In late June and early July 2016, you had been living at Launch House in Dandenong for about two months.  It appears to be a private boarding residence.  There had been periods of homelessness.  You had been smoking crystal methamphetamine, ice, for about two months.  In 2015 to 2016, there had been brief periods of treatment at Dandenong and Monash Hospitals.  Your circumstances at these times seem to have included homelessness, self-harming and attempts at suicide.  Dr Deakin's report states,  presently, the likely diagnosis of schizophrenia.  There have been diagnoses of personality disorder and depression.' 

12I went on to say in respect of the particular circumstances of that offending, and I quote:  

13'Between 28 June and 3 July, you robbed taxi drivers, Jadif Singh Gil, Suprinder Singh and Jarjeep Singh in the Doveton and Dandenong areas.  You method was consistent.  You engaged them from taxi ranks and travelled to those areas.  There was then subterfuge of a need to contact someone as you had forgotten your phone et cetera.  On each occasion, you produced a knife or your own mobile phone and robbed them of their Apple iPhone.  I find that your purpose was to fund methamphetamine use.  The stolen phones are valued at about $1200 to $1300. 

14On Charge 1, you held the knife to Jarjif Singh Dil's throat,  causing a minor mark or laceration.  At one point, he exited the vehicle.  You followed and continued to menace him outside the taxi.  The Crown opening states the time to be early evening at about 7 pm.

15On Charge 2, you asked to borrow Suprinder Singh's phone.  He gave it to you.  You left the taxi and went to a residence nearby.  You returned and made calls and then produced a knife demanding the password to his phone.  He reversed away.  The Crown opening states the time to be not long after midnight at about 1 am. 

16On Charge 3, you asked to borrow Jarjeep Singh's phone.  This was said to be in order to contact a friend who would pay the fare.  Not long after, you walked toward a residence with the phone.  Upon your return to the taxi, Singh demanded the fare.  Within the taxi, you lifted your jumper to reveal what was purportedly a knife.  As earlier stated, I have not found this to be so.  I find that Singh thought it to be a knife.  You said it was.  You left with the stolen phone.  The Crown opening states the time to be late afternoon, at about 5 pm.'

17I described your personal history and circumstances as follows: 

18'You are a 23 year old man, presently in remand custody awaiting this sentence.  At the time of the hearing I was told that you were placed under care at the Acute Assessment unit in the Melbourne Assessment Prison.  You are now in protection at the Melbourne Assessment Prison.  Likely future classification, I was told, is Hopkins Correctional Centre.  There have been periods of treatment at Thomas Embling Hospital.  You have no prior convictions. 

19'You came here from Iran at 16 with your father, as political refugees.  Your mother and older sister stayed there.  Your childhood, whilst happy and unremarkable in other ways, was affected by police interest and harassment of your parents who were seen to be anti-government.  There was police violence against your father. You completed Year 11 at school in Iran.  'By way of Indonesia and then by boat to Christmas Island, you came to Darwin.  After three months there, and a short time in Perth, you lived for a time in Sydney.  You were granted permanent residency status.  'Your father returned to Iran to be with your mother and sister.  That was about five years ago.  You moved to Melbourne after a falling out with cousins with whom you had lived in Sydney. 

20'In Sydney you worked in a kebab shop, in Melbourne for a time at a pizza shop.  You also attended Epping Secondary College when 17 at Year 11 level.  There was a short time of about two months back in Iran in 2015 or 2016. 

21'You have struggled and declined here.  As stated, there has been homelessness, self-harming and treatment for your mental health.

22'It seems to have quickly become daily use.  You reported to Dr Deakin symptoms such as auditory hallucinations over some years, also self-harming and attempts at suicide.  You stated to him auditory hallucination at the time of, and affecting your decision to offend.  You also denied using a knife.'

23As stated in 2018 you received a total effective sentence of four and a half years, with a minimum term of two and a half years.  Despite reaching the end of that minimum term in January 2019, you are still serving the head sentence. That is because you were charged with this May 2016 armed robbery in February of that year.  The Adult Parole Board therefore did not grant parole, pending resolution of this proceeding.  The head term of the present sentence expires in January 2021. 

24You were seriously unwell mentally when first remanded for the June and July 2016 matters.  That is evidenced by the report of psychiatric nurse, Jan Cheslin, dated 5 July, tendered here as Exhibit 2, and also tendered in the 2018 plea hearing.

25With treatment in custody, your mental health has recovered, albeit with difficult periods including two admissions to Thomas Embling Hospital, and is stable with what seems appropriate anti-psychotic medication.  I also accept that you have taken significant steps towards rehabilitation. 

26In 2018, relying heavily on the psychiatric report of Dr Deakin, also tendered in this plea hearing, I did not find that the Verdins principles had more than a limited application, but stated as follows:

27'Based on Dr Deakin's assessment, I do not find that The Queen v Verdins applies in the sense of direct causal connection between mental illness symptoms and of the crime, thereby reducing in a very significant way sentencing purposes such as moral culpability, denunciation and deterrence.  I accept some effect and relevance generally, of your mental health at the time.  Further, your mental health problems were a part of your isolated and,  as I have said, quite forlorn personal situation.  Your psychotic illness and otherwise poor mental health has clearly made imprisonment thus far more difficult and this will likely continue.  'There has been periods of deterioration and this risk will remain.  These are all matters that should reduce your sentence.'

28In fact, as I have said earlier, treatment in custody has improved your mental health. 

29Deportation from Australia is likely, given cancellation of your visa and sentences to imprisonment.  If, on this sentence, released on parole, you will be placed into Immigration custody.  Mr Barker states that you hope then for early deportation to your home country, Iran.  At the time of my 2018 sentence, that position was not as clear. 

30As I stated in 2018, armed robbery is a serious offence.  Adverse features of the offences on which you have been sentenced then, and of this offence, include the isolation and vulnerability of your victim.  Sentencing considerations of moral culpability, deterrence, particularly general deterrence, the need to condemn and proportionately punish are relevant.  

31Moderating factors which I identified in 2018 remain relevant.  They include your plea of guilty, that you had no criminal history at time of offence and your own personal history and circumstances at that time. 

32In short, many, really most, of the relevant sentencing considerations, are the same. The circumstances of this armed robbery and those of about one month later, whilst not identical, are similar. It can be said they fit within the same range of seriousness. Given those and other relevant matters, and the history of this proceeding since my 2018 sentence, the sentencing principles of delay and totality become, in my view, primarily important. I should impose a sentence on this matter which reflects and, if necessary, is tailored to a proper total sentence for the series of four armed robberies you committed over five to six weeks in late May to early July of 2016. As I have said, this is an unusual case. For example, the provisions of s.14 of the Sentencing Act are, on my assessment, not available to reflect totality and delay.  The minimum term I set in January 2018 has come and gone,  now, I was told, almost 18 months ago.  However, as I see it, you are still eligible for that parole release when you become eligible on this sentence.  It is this proceeding which has delayed a consideration of that parole. 

33My aim is to set a head and minimum term which reflects totality in the way I have stated. 

34It will mean an individual sentence which, on its' face, fails emphatically to meet the seriousness of the offence, its' impact on your victim and those adverse sentencing purposes earlier identified.  However, the effective total sentence, that is, for the four armed robberies on my assessment, does meet those. 

35I sentence you as follows: 

36On Indictment K10428022, on one charge of armed robbery, you are sentenced to 12 months' imprisonment.  I set a minimum term before eligibility for parole of one month. 

37There is no pre-sentence declaration declared.  I have directed no cumulation related to this sentence.  That means it is concurrent with the sentence imposed in January 2018. 

38In setting this sentence today, I have considered what cumulation would have been appropriate, that is between the four armed robbery sentences, had I sentenced you for four in January 2018. 

39To make it clear, my intention is that this head sentence will expire in 12 months from today;   that you will be eligible for parole in one month from today.  That decision, the decision of Parole release is for the Parole Board, not for me. 

40Ms Piper, Mr Barker, an indication under s.6AAA is extremely difficult at the best of times.  It borders on impossible here. 

41Doing the best I can individualising it, and narrowing it for this sentence, if I can do that, I would have imposed a sentence of 18 months with a minimum term of four months.  The attempt borders on the ridiculous really, but that is what I say, bearing in mind my obligation to say it.  Is there anything else I need to do?

42MR BARKER:  Nothing else at all, Your Honour.

43MS PIPER:  No sir.

44HIS HONOUR:  All right.  I am sorry about - I am sorry Ms Pearce about the change of time.  I hope you do understand the difficulties that I confronted in making this sentence.  I did my best to explain it for your benefit and for the benefit of others.  Thank you.  We will turn everybody off now.  Thank you. 

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