Director of Public Prosecutions v Nosrati

[2018] VCC 25

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01678

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMMAD NOSRATI

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 January 2018
CASE MAY BE CITED AS:	DPP v Nosrati
MEDIUM NEUTRAL CITATION:	[2018] VCC 25

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr Y. Hardjadibrata
For the Accused	Mr R. Thyssen

HIS HONOUR:

1Mohammad Nosrati, you are to be sentenced for three charges of armed robbery, Charges 1, 3 and 4 on the indictment, one charge of criminal damage, Charge 5, and two charges of possessing a drug of dependence.  Applicable maximum sentences are 25 years imprisonment for armed robbery and ten years imprisonment for criminal damage,  as to the drug possession charges, twelve months imprisonment for possessing the drug of dependence methylamphetamine, Charge 6 on the indictment, and a  fine of five penalty units for possession of cannabis, Charge 7. 

2You pleaded guilty to these offences on 11 September 2017, that is Charges 5, 6 and 7,  and before me on 4 October 2017, to Charges 1, 3 and 4.  Police commenced a record of interview on 4 July 2016.  That was discontinued after medical examinations found you unfit for interview.  Committal proceeded by hand-up brief on 27 September 2016.  The court records states that you entered pleas of guilty. 

3Ultimately the matter came before me for trial on
3 October 2017.  You faced a seven charge indictment and in this court had pleaded or indicated pleas of guilty to Charges 5, 6 and 7, criminal damage and possession of the drugs of dependence.  The indictment,  which had alleged the particular offensive weapon of a knife on the armed robbery charges, was amended to allege possession of an offensive weapon, not particularly identified.  You pleaded guilty to those charges in that form.  The issue raised was whether the relevant object was a knife or as you put, a mobile phone.  Your pleas admit using the relevant object offensively. Also on
4 October, the Crown indicated that it led no evidence on Charge 2, another offence of criminal damage.  A verdict of not guilty was entered. 

4A hearing was conducted on the disputed nature of the weapon.  Your victims, three taxi drivers,  and you gave evidence and were cross-examined.  Tendered exhibits included photographs, CCTV footage and still images of that, particularly of relevant activity within the taxis.  I considered evidence of coincidence under s.98 of the Evidence Act.

5On 5 October, I made findings, giving brief reasons that I was satisfied beyond reasonable doubt,  on Charges 1 and 3, that the weapon or object was a knife.  I was not satisfied beyond reasonable doubt that that was so on Charge 4.  On that charge, you will be sentenced on the basis that you possessed and used offensively a mobile phone.  That is, you threatened to use it for the purpose or purposes set out in the Crimes Act of ss.75A and 77.

6A plea hearing ran on the same day.  Mr Hardjadibrata, for the Crown, tendered or relied upon a written Crown opening,   the victim impact statement of Jagjif Singh Gill, the taxi driver on Charge 1,  and photographs of injury suffered by him.  Mr Thyssen, for you, tendered the report or letter of psychiatric nurse
Jan Cheslin, dated 5 July 2016,  and the Forensicare psychiatric reports of
Dr Gunvant Patel, dated 21 April and 7 August 2017.

7On 5 October, I adjourned the matter and requested a further psychiatric report under s.8A of the Sentencing Act.  I have since received the report of Dr Adam Deacon, dated 15 November 2017.  I was on circuit in November to December, causing further delay. 

8The tendered Crown opening comprehensively states the circumstances of offending.  I also take into account the evidence I have earlier identified and my findings on it.  My summary may be relatively short.

9In 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 methylamphetamine, 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 seemed to have included homelessness, self-harming and attempts at suicide.  Dr Deacon's report states,  presently,  the likely diagnoses of schizophrenia.  There have been diagnosis of personality disorder and depression. 

10Between 28 June and 3 July, you robbed taxi drivers Jagjif Singh Gill, Sukhjinder Singh and Jagdeep Singh in the Doveton and Dandenong areas.  Your method was consistent.  You engaged them from taxi ranks and travelled to those areas.  There was then subterfuge of a need to contact someone, that you had forgotten your own 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 methylamphetamine use.  The stolen phones are valued at about $1,200 to $1,300. 

11On Charge 1, you held a knife to Jagjif Singh Gill'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. 

12On Charge 2, you asked to borrow Sukhjinder's phone.  He gave it to you.  You left the taxi and went to a residence nearby.  You returned, 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.

13On Charge 3, you asked to borrow Jagjif Singh's phone.  This was said to be an 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.

14At about 11 am, on 3 July, you were at Launch House waiting for a taxi.  You had a toothache.  You argued with the driver who left.  You were agitated.  You returned inside and again asked the receptionist Ebony Gaudian to call an ambulance. She did so,  and again at about 11.30.  Ultimately, you threw the phone at or toward her and left.  You kicked the glass door, which had been locked behind you and broke the glass.  This is Charge 5, criminal damage.

15Police arrived not very long after and arrested you.  At the police station, small quantities of methylamphetamine and cannabis were found on you.  A further search of your room at Launch House revealed a small quantity of cannabis seized. 

16One victim impact statement has been tendered, that of Jagjif Singh Gill, your victim on Charge 1.  It is short and  possible to quote  in full.

"I felt the knife against my throat and I thought my neck was wet and there was blood, but I did not know how much.  I felt that he was nervous and I thought I do not know what he is capable of.  I was very scared and I just wanted to save my life.  I did not work for one week after it, so I did not get paid.  I had difficulty sleeping.  I talked to my boss about feeling scared and he put in a safety screen and because of that, I feel safer to return to work.

I used to be able to work any shift, but I am not able to do my normal duty of working nightshifts anymore because I am scared.  I can only do dayshifts now.  My wife is scared for me to go to work now.  I have difficulty sleeping.  I have difficulty making decisions to pick up customers.  I am in fear to work nightshift when my boss asks me if I want to.  I thought I was a good judge of character, but now I am suspicious of people and do not trust my judgment anymore.  I pay the $300 phone access".

17The victim impact of your offending must be taken into account in my sentence of you. 

18You are a 23 year old man, presently in remand custody awaiting this sentence.  At the time of the plea 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 Correction Centre.

19There have been periods of treatment at Thomas Embling Hospital.  You have no prior convictions. 

20You came here from Iran at 16,  with your father,  as political refugees.  Your mother and old 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.

21By way of Indonesia and then by boat,  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.

22In 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. 

23You have struggled and declined here.  As stated, there has been homelessness, self-harming and treatment for your mental health.  In Melbourne, you began using cannabis and then,  in 2017, ice amphetamine.  It seems to have quickly become daily use.  You reported to Dr Deacon symptoms such as auditory hallucinations of some years, also self-harming and attempts at suicide.  You stated to him auditory hallucination at the time of, and effecting, your decision to offend.  You also denied using a knife.

24It is clear that you have been mental unwell, at times markedly so, during your remand.  Under "Opinion and Recommendations", Dr Deacon's report includes the following at paragraphs 5 to 8,  bearing upon your mental state and health at the time of offending, since,  and consideration of the so called Verdins principles. 

"5.       Mr Nosrati committed the offences during a period when he was using crystal methylamphetamine.  He reported that he committed the offences for financial gain.  There was no evidence that the mental health problems that became obvious in custody were active and relevant to the commission of the offences.  Whilst he reported that he was afflicted with auditory hallucinations around the time of the commission of the offences, there was a lack of corroborative data to support that this occurred. 
Mr Nosrati may have experienced mental problems, secondary to methamphetamine, but it seems very unlikely that his decision to commit the offences was primarily driven by psychotic symptoms.

6.        Mr Nosrati has required substantial psychiatric treatment since being detained in custody.  The clinical notes from Thomas Embling Hospital confirmed the complexity and uncertainty with presentation.  He required two admissions from November 2016 to January 2017 and May 2017 to July 2017.  Following his first admission, he was discharged with a diagnosis of unstable personality disorder and depression.  But following the second admission, there was greater certainty that he has an enduring psychotic order; that will likely be schizophrenia.  His clinical presentation has likely been complicated by his complex developmental and migration history.

7.        Mr Nosrati has been treated with oral and depot anti-psychotic medication.  His mental state has markedly improved.  Whilst he was generally mentally stable in this assessment, he maintains residual delusional persecutory beliefs.  It is very clear from the clinical notes that he was markedly psychotic whilst in Thomas Embling Hospital and for substantial periods, he required seclusion management due to behaviour disturbance.

8.        Mr Nosrati will require indefinite psychiatric treatment.  Whilst his immigration status remains uncertain, I assume he may be transferred to an immigration detention centre following his release from custody.  Alternatively, if he's eventually released into the community, he will require management with an area mental health service.  He will additionally require drug counselling, given his past history of cannabis and methamphetamine use. Given the paucity of community supports, he could be aided by being provided the stable accommodation and social supports".

25Based on Dr Deacon's assessment, I do not find that R v Verdins applies, in the sense of direct causal connection between mental illness symptoms and 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.

26Further, 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 have been periods of deterioration and this risk will remain.  These are all matters which should reduce your sentence. 

27As raised by Dr Deacon's report, there is the prospect of deportation after you have completed the sentence, or upon release on parole.  I find it at least possible, perhaps likely.  You are not in a situation of a person who has lived and settled here in a very stable way.  Further, it cannot be found that deportation is certain in the sense that your residential status has been cancelled.

28However, I also bear in mind the likely impact of this prospect upon you and your situation in prison. 

29Armed robbery, particularly is a serious offence.  Your victims were isolated and vulnerable.  At close quarters, you produced a knife upon two of them and the third, as you intended, thought you had.  You held the knife close to Jagjif Singh Gill, as to cause that minor laceration.

30It was without doubt a frightening experience for all three.  There is significant stated impact upon one. 

31The receptionist at Launch House, Ebony Gaudian, did not deserve your treatment of her. 

32The circumstances of such offending, as this make relevant the sentencing purposes and considerations of deterrence, especially general deterrence, moral culpability, the need to sentence in a way to condemn the offending and to punish in a way proportionate to it. 

33There must be a sentence of imprisonment, one of significant length.

34However, there are also relevant factors which should go to moderate that sentence.  They particularly include the following.

1.  Your pleas of guilty.  Particularly those pleas to the armed robbery charges were not early.  However, I bear in mind the matters raised by
Mr Tyson relevant to that.  Over some time, there was what I would find a necessary consideration of your fitness to stand trial.  I was told there were mention hearings in this court, related to that.  There was expert assessment of that question and perhaps the related question of mental impairment defence.  The hearing before me as to the nature of the offensive weapon had some ultimate justification; that is, on Charge 4.  It was regrettable that it entailed evidence by your victims.  However, that cannot be seen as a matter adverse to you on sentencing.  I also take into account your unstable mental health during the period from police interview, then charge and the plea hearing.  Your pleas of guilty have still facilitated the interests of justice and at least express remorse.

2.  You have no criminal history.  Are still quite young at 23 and must be seen as having the prospect of rehabilitation.  Your future is uncertain and rehabilitation will depend much upon a situation in which there is helpful mental treatment and reformation from drug use.

3.  Your personal history and circumstances.  This includes consideration of your mental illness, the Verdins principles and the general situation of your life when you committed these offences.  I also bear in mind that they were committed,  in that situation,  over a short period of time.  Some moderation of your sentences and orders for only partial cumulation are required because of this.

35These matters go to reduce the length of your sentence compared to what the serious objective circumstances would require.  In this case, they may particularly be reflected in the minimum term served before being eligible for parole.  Your mental health and rehabilitative development will be important to what the Adult Parole Board decides upon this.

36I would find that a legitimate feeling of sympathy for your circumstances should be seen as a relevant sentencing factor here.  Of course, there must also be the attempt to sentence reflecting the serious nature of what you did. 

37After considering, weighing and balancing what I see to be the relevant competing factors, I sentence you as follows.

38On Charge 1, armed robbery, you are sentenced to three and a half years imprisonment.  On Charge 3, armed robbery, you are sentenced to three years imprisonment.  On Charge 4, armed robbery, you are sentenced to two and a half years imprisonment.  On Charge 5, criminal damage, you are sentenced to four months imprisonment.  On Charge 6, possessing a drug of dependence,  methamphetamine, you are sentenced to one month imprisonment.  On Charge 7, possessing a drug of dependence cannabis, you are convicted and fined $100.

39I direct that six months of the sentence for Charge 2 and six months for the sentence for Charge 4 be served cumulatively upon the sentence for Charge 1 and upon each other.  That is a total effective sentence of four years and six months.  I set a minimum term of two years and six months before eligibility for parole. 

40I declare under s.18 569 days of pre-sentence detention. Under s.6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have imposed a sentence of six years, with a minimum term of four years.  Now there are other orders Mr Hardjadibrata are there not?

41MR HARDJADIBRATA:  That's right, Your Honour.  I sought a forensic sample order and a disposal order for certain items.

42HIS HONOUR:  It's a retention order isn't it?

43MR HARDJADIBRATA:  Yes, a retention order in respect of a forensic sample, Your Honour.

44HIS HONOUR:  I'll sign the disposal order now, that's in respect of - I'm just trying to find the - is there a schedule?  What is it?  It's the iPhones and the knife and a grey sweater, yes.  I'll sign those orders now.  Now there's an application that I order the saliva sample taken from Mr Nosrati to be retained.  I shall make that order.  The reasons why I will do so are the seriousness of the circumstance of the offending.  The granting of the order is in the public interest.  I note that it is not opposed.  I'll sign that order now.  Yes I'll hand those orders down now.  Is there anything else I need to do?

45MR HARDJADIBRATA:  No, Your Honour.

46MR THYSSEN:  No, Your Honour.

47HIS HONOUR:  Thank you, Mr Hardjadibrata.  Thank you, Mr Thyssen. 
Mr Nosrati can be taken into custody.

48OFFENDER:  Excuse me (indistinct words).

49HIS HONOUR:  You're going to see him downstairs are you?

50OFFENDER:  Sorry, I'll go and see him downstairs.

51HIS HONOUR:  You're going to see him downstairs?  All right, good.  Thank you.  Thank you Mr Hardjadibrata, thank you Mr Thyssen, I will now stand down.

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