Director of Public Prosecutions v Putrus

[2018] VCC 167

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00364

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAZIN PUTRUS

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 4-8, 11 December 2017; Plea: 9 February 2018
DATE OF SENTENCE:	26 February 2018
CASE MAY BE CITED AS:	DPP v PUTRUS
MEDIUM NEUTRAL CITATION:	[2018] VCC 167

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Attempted aggravated burglary; armed robbery & theft of car; prior relevant offending; subsequent sentences and totality; decision already made for deportation after release; late pleas of guilty for some but not all charges; co-offenders

Legislation Cited:                 Sentencing Act 1991 (Vic) s. 6AAA
Sentence:  TES: 5 years, 2 months; New NPP: 3 years 10 months

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms D. Guesdon	Office of Public Prosecutions
For the Accused	Mr N. Goodfellow	Balmer & Associates

HER HONOUR:

1Mazin Putrus, you were found guilty by a jury of one charge of armed robbery.  You have pleaded guilty to one charge of attempted aggravated burglary, and one charge of theft of a motor vehicle.  You have also agreed to have transferred to this court, and have pleaded guilty to a summary charge of committing an indictable offence, namely aggravated burglary, whilst on bail.

2You have also admitted to a prior criminal history to which I shall refer later.

3The maximum penalty for the charge of armed robbery is 25 years imprisonment.  The maximum penalty for the charge of attempted aggravated burglary is 20 years imprisonment.  The maximum for the charge of theft is 10 years imprisonment and for the summary charge of committing an indictable offence, it is three months imprisonment.  I take these maximum penalties into account in assessing the objective seriousness of each offence. 

4The armed robbery and attempted aggravated burglary were committed as part of the same events which occurred on 13 April 2016.  Details of those events, and your participation in them, were explored at some length during the trial, and I shall only repeat enough to allow assessment of the seriousness of the circumstances and of your involvement.

5On 13 April 2016, at approximately 3.45 pm, you and two other men,
Marvin Afran and Bradley Higgins, arrived in two cars at a suburban house in Newport.  Your purpose was to enter and steal from those premises.  I am told by your counsel that your primary purpose was to steal drugs, but it is clear that you had been told earlier that afternoon, by another co-offender,
Shantel Ribbons, who was inside the house that afternoon, that there was a lot worth stealing.  To use the words of one of her SMS messages to you, "so organise a van or mini truck before anything wen I say there is a lot of shit I mean shitloads a commodore a Jeep at backyard a boat and the other rooms full". 

6Although you did not yourself bring a firearm to this event, you were aware that both of your co-offenders did.  Afran carried a sawn-off shotgun and Higgins, a shortened firearm. After both cars stopped near the house in question, the three of you, led by Higgins, walked up the driveway looking for the entrance.  Afran and Higgins clearly displaying their firearms, both knocked and called out at the front door to gain entry.  CCTV footage shows this, including that Higgins went and knocked with his gun on a window.  The owner, Mr Peter Traikos, had deadlocked the doors and barricaded himself in his bedroom, watching on screens there the footage from the several CCTV cameras installed around the outside of his house. You stood behind the other two men as they were at the door trying to gain entry.  You appeared to keep watch, while they demanded entry and when that was unsuccessful, you led the other two around the house to try to find a means of entry from another side, but that was also unsuccessful. 

7A few minutes later, a Commodore car began to turn into the driveway and you immediately ran from the front yard towards it, followed by Higgins carrying his firearm.  The car, owned by Mr Traikos, was being driven at the time by a friend of his, Mr Brett Williams, who was returning from driving another person to a train station.

8As Mr Williams turned the Commodore into the driveway, he saw you and Higgins run towards the car and he could see the third man, Afran, in the front yard.  You went straight to the driver's side door and told him aggressively to "Get out of the fuckon car".  His description of what occurred was "Very aggressive and multiple there and I don't like any confrontation.  Something was coming across really aggressive".  Although he was not sure whether it was one or two of you who said anything to him at that stage, he was not going to argue and just complied.  The CCTV footage shows that as you ran to the driver's side door, Higgins went to the front passenger side door and opened it, with his right arm entering the car, his firearm being held in his right hand.

9Mr Williams got out of the car leaving the keys in it.  You then stood between him and the driver's seat, signalling him to go with Afran, who by then had approached the driver's side of the car.  Afran's firearm was partly concealed under his clothes, but as you pointed at Williams to go with Afran, Williams moved his hands away from his body in a raised hands gesture and then was pushed and signalled by Afran to walk up the driveway.  Higgins followed them, still with his gun clearly visible.  You then got into the car and re-positioned it, parking it parallel to the curb outside the adjoining house. 

10Meanwhile, Higgins and Afran, both with their guns visible, and Higgins erratically pointing his at Mr Williams, got him to stand in line with the door of the house, demanding that the occupier open the door to let them in, under threat of hurting Williams.  Mr Traikos continued to refuse to open the door, leaving Mr Williams to his fate with the two armed men, and you then walked up the side drive and re-joined them. There was further threatening of Mr Williams by pointing the gun at him, getting him to empty his pockets and place their contents on the ground.  It became obvious that the door was not going to be opened to let you all inside.  Mr Traikos called out that he had rung the police, which he had.  Ms Ribbons had come out of a different door and joined your group near the front door, still trying to persuade Traikos to open it.  A couple of minutes later, you, Afran and Higgins apparently gave up and decided to leave.  You walked back to the Commodore and drove it away. 

11A couple of days later, police had you under surveillance and saw you driving a Toyota Hilux vehicle with your then girlfriend inside the car, and saw you parking this vehicle outside her family's house.  That vehicle had been stolen a few days earlier, and your use of it is the basis for Charge 3 of theft of that vehicle. 

12The fact of committing Charge 1 while on bail is the basis for the summary charge of committing an indictable offence while on bail.  In fact, any of the three charges on the indictment could have been the basis for that charge. 

13On the first day of the trial fixed to start before me last December, you pleaded guilty to Charge 1 of attempted aggravated burglary, constituted by your participation in the various and ongoing attempts to enter the house in Newport with intent to steal. 

14The trial was run solely in respect of the charge of armed robbery of the Commodore vehicle.  You conceded that you stole that car, but denied that it was by robbery.  That is, you denied that at the time of stealing the car, there was force used or anyone was put in fear that force would be used. 

15The jury found you guilty of armed robbery.  I must sentence you on a factual basis consistent with that verdict. 

16Having heard and seen the evidence during the trial, I am satisfied that the jury could have found beyond reasonable doubt that armed robbery was constituted on more than one interpretation of the facts.  First, it was well open on the evidence to find that although Mr Williams himself agreed that there was no threat made to him to get out of the car, that could be taken to be his thinking only of an oral threat, and it could easily be found on the evidence that the circumstances did constitute a threat of force.  He saw three men coming towards him, he was told aggressively to get out of the car and the actual words used support that, he felt something was about to happen and he was not going to resist. From the CCTV footage, it can be seen that immediately after he got out of the car, and before you got into it, he had his hands away from his body and raised in a gesture of showing he was not resisting, implying the threat of force. Further, although he could not recall seeing anyone's firearm at that stage, it is clear from the CCTV footage that Higgins' firearm was in plain sight, as he moved towards the car and that as he opened the passenger door and lent into the car, he was holding it in his right hand.  In my view, it was well open to the jury to be satisfied beyond reasonable doubt, that in combination that conduct of you and your co-offenders was intimidatory, and that Williams was put in fear of force being used, unless he got out of the car and left the keys.

17Further, there was an alternative factual basis on which, in my view, it was open to find that the car was taken by use of a threat of force.  Notwithstanding that by re-positioning the car at the stage you did, you were deemed to have intended to permanently deprive the owner of it, so as to satisfy that element of the crime of theft of a vehicle, in this case the factual situation was that the act of taking the car, could be found to have been extended over a longer period, including the interlude between the car being temporarily positioned outside the neighbouring property, before it was finally driven away by you.  There can be no doubt that during that period, there was overt threat of force to Mr Williams, and he says he thought he was going to be shot, as he stood clearly frightened in the driveway, with Higgins waving his gun erratically, Afran ordering him to empty his pockets, and him having to keep his hands in the air, as the three of you decided what to do Afran also made his firearm visible for part of that time. 

18To avoid any uncertainty about the factual scenario on which I sentence you, I shall take the first basis, that is that the circumstances constituted a threat of force at the time of ordering Williams out of the car and you getting into it, to move it.  Clearly at that time you were aware that both of your co-offenders had firearms and indeed, Higgins' one was shown on the CCTV to have been clearly in sight, even if Mr Williams could not later remember that.

19I must assess the seriousness of this offending and your involvement in it.  First, you were part of the planning of this offending to the extent that it was you communicating with Ms Ribbons, by text messages, from at least two hours earlier, including receiving the address, the comments from Ms Ribbons that there was so much to steal that you should get a van, and suggesting her cousin Brad be asked to assist.  You enquired how many people were there and whether it was someone you knew.  From the CCTV of the events at the house, it is clear that the plan was not sophisticated and there was little competence in its execution, but that does not reduce your culpability for having been part of pre-planning this incident.

20The actual events were committed brazenly, in broad daylight and involved going in numbers, namely three, two carrying menacing firearms.  The fact that none of you were very competent in thinking how to gain entry, when the door was not opened on demand, does not decrease the seriousness of the attempted aggravated burglary.  The threatening of Mr Williams in the driveway in the attempt to use him to get the door opened, was particularly serious.  I heard Mr Williams give evidence, and watched the CCTV footage, and from both, I conclude that he was genuinely very frightened for his own safety, while standing in the driveway, exposed to the erratic behaviour of your group.  In particular, of Mr Higgins as he waved his firearm around.

21So far as the armed robbery of the car was concerned, I have already described the intimidation used on Mr Williams to get him out of the car and to walk away from it, so that you could take it.  Although not holding a firearm yourself, you seemed to have taken a lead role in that offence, being the first to run to the car, and being the one to yell at Mr Williams to get out and to stand right beside the driver's side door.  This was occurring on a suburban street, in the middle of the afternoon, potentially putting other people, beyond just Mr Williams, in fear, and at risk to their own safety. 

22I am told that you and your co-offenders were all under the influence of drugs.  You personally had used methylamphetamine and GHB and you had apparently not slept for some days.  Not only is this not an excuse for the offending, in my view, it adds to the danger of the situation, when you and your co-offenders were less likely to be thinking clearly, were hyped up with the effects of the drugs and behaving in a more volatile manner, than had you had your wits about you through no influence of the drugs. Nor could it be said that the effect of drugs led to a wholly spontaneous incident, because you had been communicating with Ms Ribbons for approximately two hours prior to it and the three of you went to this address, with a plan to commit this offending. 

23You were on bail at the time, for a previous aggravated burglary committed with Mr Afran.  That you committed this offending while on bail at all, let alone for similar offending, is an aggravating factor.  The earlier aggravated burglary did not involve firearms, so this offending was escalating in seriousness.  To have committed an indictable offence while on bail, is itself an offence that carries a separate penalty of up to three months imprisonment.  I will be sentencing you on that separate summary offence, but as I regard it as an aggravating feature of you committing the aggravated burglary, I shall not impose double punishment when it comes to the summary offence.

24Although the attempt at aggravated burglary failed, and from an objective point of view an attempt at an offence such as this is regarded as slightly less serious, as reflected by a maximum penalty of five years lower than had the offence been completed, that is by actual entry to the house, I regard this as a serious instance of what the maximum penalty indicates is a serious offence.  I have already described that this was a volatile and aggressive event and planned, although not very competently.  The CCTV footage shows that there were other people passing the house at points during these overall events, in vehicles and also a schoolboy walking past, and even he was oblivious, as he appears to have been, of what was occurring, the potential for placing passers-by at risk of harm was very real.

25I assess the armed robbery of Mr Williams as in a medium range for that offence.  The weapons present were firearms, which immediately places it above many other instances of the offence of armed robbery, where improvised weapons are used.  It was committed on a suburban street with other street users, potentially at risk of harm from the weapons.  You used weight of numbers, that is three men against one, to intimidate.  While it was opportunistic in the sense that the car arrived at a time that you were in the front yard, there had clearly been an intention to steal from those premises that day and the Commodore had been mentioned in more than one text from Ms Ribbons to you, as one of the items she was flagging as available. 

26In relation to the circumstances of the theft of the Hilux vehicle, as I have said, that offence is constituted by you being observed to use a stolen vehicle for a day or so.  I do not regard it as the most serious instance of a theft of a motor vehicle by subsequent use, but it reflects your general willingness to take risks as to whether you were involving yourself in further offending by driving that vehicle. 

27You were arrested on 18 April 2016 and interviewed by police.  You answered "No comment" to knowing anything about the incident and denied memory of what you were doing on that day.  At a contested committal hearing in February 2017, the victims were cross-examined on your behalf.  At the outset of the trial listed to commence on 4 December 2017, you entered a plea of guilty to the charge of aggravated burglary, only, I might add, during the first arraignment.  But you still denied the charge of armed robbery and the charge of theft of the Hilux vehicle.

28Your decision to plead guilty to the theft of the Hilux vehicle only occurred after the trial and apparently after the prosecution had provided further information on the evidence of police about you being observed driving it.  These were very late pleas of guilty. Nevertheless, you are entitled to some degree of leniency in the sentences to be imposed for the charges on which you did plead guilty, for the utilitarian value of shortening the trial that occurred last year.  The fact that you maintained your plea of not guilty on the other charge, that of armed robbery, even though you admitted to stealing the Commodore vehicle, meant that both Mr Traikos, and Mr Williams had to be called and give evidence, although there was no cross-examination of Mr Traikos at the trial. 

29Insofar as the late plea avoided a trial about the Toyota Hilux, that was only after you had first applied for and obtained severance of that charge, from what was to be the subject of the trial last December, but it is clear that you have avoided a disputed hearing about it.  Your pleas, when they came, reflect minimal acknowledgement of wrongdoing and only minimal and last minute, acceptance of responsibility for your actions. 

30To the extent that a plea of guilty is usually evidence of some remorse, I find little to reflect that you feel remorse in respect of the charges to which you pleaded guilty and you still do not acknowledge that the taking of the Commodore was armed robbery. When I say little to reflect remorse, that does not mean that I do not accept that you feel regret, but that is regret for the consequences to you and your family, rather than remorse for being involved in such offending, and the consequences it may have had on those effected by that offending. 

31As I have said, on the charges to which you ultimately pleaded guilty, there will be some reduction in your sentences to reflect some utilitarian value, but those reductions will be modest.  You do not receive a harsher sentence for taking the armed robbery to trial, but as I indicated, more than once before the jury was empanelled, it was an ambitious attempt to obtain a verdict of theft rather than armed robbery, and had the effect of diminishing the utilitarian value of a plea of guilty on Charge 1.

32I take into account that the trial was run on a narrower issue than had you denied your presence or participation.  But in light of the CCTV evidence, that would have been even more futile. 

33There can be no doubt that an incident of such brazen nature, carried out in broad daylight in a suburban street, calls for a sentence that conveys clear condemnation.  Community fears become heightened at this type of incident, with good reason. Even if, and it has not been proved of course before me, the primary aim was to steal drugs, and even if community sympathy may be lessened somewhat towards the occupier of the house, if that were the case, for the reasons I have already stated, the incident still requires a sentence to reflect clear condemnation. 

34I regard the main purposes of the sentences I impose to be denunciation or condemnation, just punishment and general deterrence.  General deterrence is to send the message to others tempted to engage in such conduct, that it will attract stern punishment.

35I turn now to your personal circumstances.  You are now aged 28 years and were 26 at the time of this offending.  You were born in Baghdad, Iraq, the second eldest of five brothers.  You attended school to age 14, but then the family, as Christians being part of a persecuted minority, fled Iraq to Syria, where you spent four to five years before being granted asylum and entry to Australia.  I accept that you and your family lived through very difficult and unstable times, both in Iraq and then in Syria, and that you as a teenager, found the displacement particularly difficult.  Trying to establish new friendships, not being in school in Syria, and each time you had to move again was no doubt difficult you. 

36You arrived in Melbourne in 2009 and were then aged about 20.  You were not able to resume schooling.  This means that your education ended at the equivalent of about Year 8 in Iraq.  You have not undertaken any further education.  You obtained work initially through a family friend in panel beating and have also had other jobs, such as forklift driving.  I am told that you see panel beating and mechanics as your preferred future occupation.  I am told that the job as a forklift driver ended because you were sentenced to a term of imprisonment and the employer, having government contracts, was not able to re-employ you with your criminal record after that.  That, as I will come to shortly, should have been one of the very real indicators to you of the serious consequences of engaging in criminal offending and could have been, in itself, a deterrent, had you recognised it and acted on it at the time.

37You come before the court with a criminal record which does you no credit, and which has considerable relevance to the sentences that I am to impose.  You had five court appearances prior to this offending.  In December 2011, you were first before Broadmeadows Magistrates' Court for several charges relating to misuse of a vehicle, including two charges of driving whilst suspended.  None of those in themselves are relevant to the current matter.  You were convicted and fined as a result.  You were next convicted in March 2012 on one charge of aggravated burglary, and one of theft, for which you were placed on a Community Corrections Order.  However, you breached that order and the record shows that you were sentenced on that breach to six months imprisonment, although I was told that you served two months imprisonment at that stage. In September 2013, you were sentenced to two months imprisonment for driving while suspended, but on appeal to the County Court, that sentence was suspended. 

38Of even more concern, and although not strictly a prior conviction for the purposes of the sentences I impose, in May 2015, you had participated in an aggravated burglary and theft for which you were arrested and remanded in custody in mid-June 2015.  You spent approximately six months on remand for that offence, before being granted bail in December 2015.  You were on bail for that offending when you committed the offences before me.

39You had continued to deny the May 2015 offending, which eventually came before this court in December 2016.  I note from the sentencing reasons of His Honour Judge Punshon, on 12 December 2016, that you were the last of the three offenders to plead.  It could not be argued that your pleas of guilty were at an early stage, but were finally generated after prosecution concessions.  I note that there were no weapons taken with you on that occasion, although one of your co-offenders was Mr Afran.  I also note that it was not alleged that you were party to an assault on the occupier of that house.  Again, it was said that the aim was to steal drugs believed to be in that house. You were sentenced in December 2016 by Judge Punshon to an aggregate term of two years and four months imprisonment, with a sixteen month non-parole period.  With considerable pre-sentence detention declared, I believe that that sentence has by now expired. 

40Further, although again not a prior offence for the purpose of the current matters, you had, whilst remanded on bail for the 2015 aggravated burglary and theft, been part of a riot in the Metropolitan Remand Centre in June 2015.  That charge had not been dealt with prior to the offending for which I sentence you.

41On 16 November last year, only about two weeks before the trial before me commenced, you were sentenced by His Honour Judge Montgomery, after you pleaded guilty to a charge of riot.  His Honour imposed twenty-one months imprisonment, with a non-parole period of twelve months.  That sentence was to be concurrent with the sentence you were still serving, being the one that had been imposed by His Honour Judge Punshon, but the non-parole period by then had expired.  The net effect of those sentences is that you are currently serving a sentence which will end on 15 August 2019, that is next year, and the earliest date on which you could be eligible for parole is 15 November 2018. Those sentences are relevant to my sentencing of you in several ways.  First, there should be some moderation of the sentences I impose due to the principle of totality.  That is, to take into account how long overall you should be serving in prison, taking into account the totality of the offending for which such sentences have been imposed.  As the total sentence I impose will be longer than those concurrently being served in any event, there will be no further cumulation of the total but some cumulation of the different charges on which I sentence you in reaching that total. You will therefore have the benefit of totality being taken into account, with considerable concurrency with Judge Montgomery’s sentence.[1]

[1] Altered after final discussion about technical problem with any cumulation of TES.

42Another aspect of your past offending and sentences, which is in my view very significant, is that you had not learnt your lesson from the previous experience.  You had not learnt your lesson from being caught and charged by police on several occasions, sentenced by courts and experiencing time in prison.  Even learning that by having spent some time in prison, you were going to be debarred from certain types of employment, was not sufficient deterrents from continuing to engage in problematic behaviour, that is, drug abuse and offending,  including offending of the nature that is now before me.

43In your early twenties, you were sentenced to imprisonment, having breached a Community Corrections Order, which had no doubt been imposed as an opportunity for you to address your underlying problems without the need for imprisonment.  Whether you served two or six months at that stage, you were then, in 2013, aged only 23 or 24, and apparently did not find a period in adult prison confronting enough to deter you from resuming your problematic behaviour on release.  Even more concerning is that having been remanded in custody after committing a further aggravated burglary with Mr Afran in mid-2015, and after spending, some six months before obtaining bail, during which time you participated in a prison riot, you were again not sufficiently deterred from resuming your problematic conduct.

44You were again mixing with Mr Afran, using methylamphetamine which contributed to going days without sleep, and you engaged, not only in another similar incident of attempted aggravated burglary and theft, but this time you were prepared to do so in company with men who carried firearms for the purpose.  The seriousness of the offending was therefore escalating and in my view, in the context of these previous opportunities to learn your lesson, the seriousness of your involvement is greater and it also, given that history, requires specific deterrence to be a purpose of your sentence.

45Your offending is now known to have brought about other consequences which will be of very major significance to you.  Unlike other members of your family, you had not applied for Australian citizenship and since convictions before this your visa has been cancelled and you have been notified that you will be deported from Australia once released from prison.  You sought review of the initial decision to that effect by the Department of Immigration and Border Protection, and I am told the family put as much information as possible in support of that review. However, on 19 October last year, you were notified that it was rejected and your visa remains cancelled.  Although you had the right to have the decision further reviewed in the Administrative Appeals Tribunal, no such application was made. This means that it is most likely, when you are released from prison, that you will be taken immediately into immigration detention and deported from Australia. 

46I accept that this means that you face greater uncertainty about your future and how you will cope with being deported back to Iraq.  I take into account that this will weigh very heavily on you and make your experience of time in prison more onerous. I take into account that what will weigh heavily on you, is not only uncertainty about your own future, but also some concern by you about the impact that this is having on your parents, brothers and family and will have when it comes into effect. 

47Your parents and one of your brothers were at the plea hearing, and I am assuming another today, have been in court to support you.  I am told that your other brothers are similarly supportive.  I am told that no other member of the family has been in any trouble with the law since arriving in Australia, under humanitarian visas, in 2009.  I accept that your parents and brothers are shocked and disturbed by your behaviour, both involving yourself in drug abuse and then the offences to which that has led.

48I also accept that your family must be upset at the prospect of your inevitable further imprisonment and also greatly concerned by the prospects of your being deported back to Iraq on release from prison.  You will be effectively permanently separated from them, in that you will not be allowed to re-enter Australia and they are no doubt genuinely concerned about both that separation and what will happen to you.  I read a joint reference from all of them, in which it is explained that one of your brother's has been delaying his marriage so that you could attend.  It seems to me that that has been more in hope than reality, at least since the decision by the Immigration Department and once the decision on the review was known.

49I am told that you have been making some effort more recently since being held in custody to stay clear of drugs.  A bundle of negative urine screens was tendered.  There was also a certificate from Kangan Institute for you completing a certificate in cleaning operations last year, showing that you have at least turned your attention to trying to do something constructive with your time in prison.

50I have also read a character reference from your family's parish priest, who states that he has known your family since 1995.  I take it that that was in Iraq.  Whilst I do not doubt his sincerity in writing a reference in support of you, and to support your family, what he says does not really fit with the circumstances as I know them - that you had been heavily using drugs when last out of custody and have in fact been in prison for the last twenty-one months.  When he talks of you always having spoken to him about your bright future plans, I suspect he is talking about conversations a long time ago.

51I was provided with a photocopy of an undated letter from you expressing remorse for what you have done, that you have let down your whole family, and have had a long time in custody to think about the direction of your life due to your drug use.  I noted at the time that it was a photocopy letter and it is undated.  It does not specify which offences you were acknowledging, and it is addressed to the Sentencing Judge to show "him/her" that you are as remorseful as it states. This appears to me to be a letter of a generic nature, possibly created for either Judge Punshon or Judge Montgomery's matters.  Certainly after standing trial in front of me, you must have known that this time you would be sentenced by “Her” Honour.  It does little to persuade me that you are as deeply genuinely remorseful as you describe, although I do accept that you regret the impact on your family of your offending, and deeply regret the consequences that you have brought on yourself, including your likely deportation. 

52I have read a psychological report prepared by psychologist Alice Crole dated 4 February 2018.  It outlines your history as related to this psychologist.  One of your brothers informed her that you had always been “headstrong” and easily led by “bad people”, a pattern that continued when the family migrated to Australia.  You outlined commencing to use illicit drugs soon after arriving in Australia, commencing with cannabis, but by 2012, using “ice”, and that your use of that substance increased after you were shot in the foot in an incident of apparent mistaken identity. You stated that because of chronic pain from the gunshot, you had recently commenced Lyrica.  I assume from the date of this report and when Ms Crole was told that, that you have been prescribed Lyrica in prison.   

53Ms Crole reports that you say you have provided clear urine samples since being incarcerated in 2015.  However, that is not consistent with you having resumed abusing drugs once released on bail in December 2015, and as I am told, using heavily at the time of this offending in April 2016.  Nevertheless the diagnosis of stimulant use disorder, in remission in a controlled environment, is noted.

54You were diagnosed as presenting with an adjustment disorder, with mixed anxiety and depressed mood, reporting a general sense of overwhelmed and depressed mood, owing to several factors, including missing your family, rumination about your guilt and regret regarding your past actions, uncertainty regarding your upcoming sentencing, and pending deportation and associated risk of persecution in Iraq, given your Christian faith. This diagnosis was based on a self-report questionnaire, and placed you in the severe level for depression and extreme level for anxiety and stress.  You described that despite having suffered anxiety throughout your life, your symptoms worsened since your current incarceration, characterised by over-thinking.  You are also regarded as having symptoms consistent with a post-traumatic stress disorder diagnosis, including occasional flashbacks of the war in Iraq, avoiding reminders of war, experiencing anger, and displaying irritable or angry outbursts and feeling hypervigilant to potential threats around you.

55Finally, I note that on testing for cognitive functioning, you were assessed as having an overall IQ which would place you in a very low range of cognitive functioning and borderline intellectual disablement, but your adaptive behaviour skills have not been tested, so no formal finding of an intellectual disability has been made.

56I accept that to a moderate degree, your conditions of depression, anxiety and post-traumatic stress disorder, have and will continue to make your experience of imprisonment more onerous than for someone not suffering from those conditions.  It is not suggested that any of these conditions was sufficiently causally linked to the offending for which I sentence you, to attract leniency for either reduced moral culpability or moderated general or specific deterrence.

57I turn next to another consideration.  The principle of parity requires me to have regard to the sentences of co-offenders, so that what sentences I impose on like offending, will not be regarded as so different from those on your co-offenders as to offend against the principles of equal justice.

58The only one of your co-offenders who has yet been sentenced is
Bradley Higgins, although the other two I understand are to be sentenced shortly.  Mr Higgins was sentenced by His Honour Judge Taft on 22 November 2016, after he pleaded guilty to charges of armed robbery, attempted aggravated burglary and being a prohibited person in possession of a firearm.  The last, that is that third charge, of course is not a charge that you face. He pleaded guilty at an early stage and received an aggregate sentence of four years imprisonment with a non-parole period of two years and nine months. 

59In comparing your roles, I note that he carried a shortened firearm throughout and waved it around erratically, both when trying to gain entry to the house and also in the driveway beside Mr Williams.  You did not carry a weapon, but seemed to take the lead role in the robbery of the Commodore car. You also seem to have been involved in the planning of the incident and it seems that Mr Higgins was only enlisted at the suggestion of his cousin
Ms Ribbons when she texted from inside the house. I assess your respective roles as about equivalent in seriousness.  Mr Higgins is a little older than you, but was about the same age when sentenced as you are now.  He has a more extensive criminal history than yours, although as I have said, yours is serious. He has a longstanding problem with drug addiction, as do you.  He received the benefit of an early plea of guilty and the taking of responsibility for his offending.  I cannot impose an aggregate sentence on you, whereas an aggregate sentence was imposed on him.  That is because you pleaded not guilty to one of the charges and guilty to others.  Nevertheless, I have taken into account the sentence imposed on Mr Higgins, to apply what parity is in my view available.

60I have already said that sentencing purposes of general deterrence, just punishment and denunciation of such conduct are important, and that having regard to your history of offending, specific deterrence is also very important, that is, to deter you personally from resuming such activities.  While protection of the public would also be important if you were likely to be released into the Australian community, it is in my view of considerably less weight as opposed to general deterrence, that is deterring others from copying such conduct in light of your likely deportation.

61As was conceded on your behalf, this was serious offending and no sentence short of imprisonment would be appropriate.  I have taken into account issues of disruption in your adolescence and its impact on you, having difficulty adjusting to living in Australia.  I have also taken into account that you were exposed to trauma in your upbringing in both Iraq and your time in Syria. I have taken into account the principle of totality, and have had regard to the fact that you have been in custody now continuously for the last twenty-one months or so, with none of that period counting as pre-sentence detention because some of it had already been credited and the balance has been in serving other sentences.  I take into account that there had also been six months spent in custody from June 2015, before this offending, meaning that you have spent more than two of the last two and a half years in prison. I have also taken into account that your experience of imprisonment from now onwards and indeed from last October onwards, will be harder on you due to the great uncertainty and anxiety about your future on likely deportation to Iraq. 

62Nevertheless, as I have said, this was serious offending and the third time you engaged in or attempted to engage in aggravated burglary and theft.   

63Would you stand up now please Mr Putrus.

64Mazin Putrus, on each of the charges on the indictment, you are convicted and sentenced as follows.  On Charge 1 of attempted aggravated burglary, three years and eight months imprisonment.  On Charge 2 of armed robbery, that's of the Commodore car, four years and six months imprisonment.  On Charge 3, theft of the Hilux vehicle, six months imprisonment.  I direct that six months of the sentence on Charge 1 and two months of the sentence on Charge 3, be served cumulatively on each other and on the sentence imposed on Charge 2.  That creates a total effective sentence of five years and two months imprisonment.

Subsequently reversed:

65In my view, there should be some cumulation of that total effective sentence, on the sentence imposed by Judge Montgomery, but not as much as it would have been had you not already been in custody for so long.  As I said, that I am applying the principle of totality, including consideration, that none of the time you have been in prison is counting as pre-sentence detention for these charges.

66I direct that three months of the total effective sentence on the indictment be served cumulatively on the sentence you are currently serving, that is the one imposed by Judge Montgomery last November. 

67I fix a new non-parole period of three years and ten months and that commences today. 

68On the summary charge of committing an indictable offence whilst on bail, I impose a term of imprisonment of one month and I direct that that be served wholly concurrently with the other sentences I impose today.

69In relation to each charge involving theft of a motor vehicle, that is Charges 2 and 3 on the indictment, I must cancel any driver's licence held by you and impose a period of disqualification.

70As it is unlikely you will further have opportunity to drive before deportation.  That is somewhat academic, and in particular, given the new non-parole period I am imposing today.  I impose a period of six months disqualification from obtaining a driver's licence on each of those charges, that is Charge 2 of armed robbery of the Commodore and Charge 3 of theft of the Hilux. 

71For the purposes of s.6AAA of the Sentencing Act, I must state what sentence I would have imposed, but for your pleas of guilty on the charges to which you did plead guilty.  In the present case, that is an even more than usually artificial task, where there was a trial on Charge 2, which concerned the same overall incident as Charge 1, to which you pleaded guilty and therefore necessitated the calling of evidence that would otherwise have been avoided by the plea of guilty on Charge 1.  It is also more artificial because there is a new non-parole period being imposed on the existing sentence, and because the summary charge would not be dealt with in this court, if it were not for the plea of guilty.

72Nevertheless, for the purpose of s.6AAA of the Sentencing Act, I state that if you had not pleaded guilty, but been found guilty after a trial on Charge 1 of attempted aggravated burglary, I would have imposed a sentence of four years and six months imprisonment.  On Charge 3 of theft of the Hilux vehicle, I would have imposed a sentence of nine months' imprisonment.  On the summary charge, without the plea of guilty, I would have imposed six weeks imprisonment.  But for your pleas of guilty on those charges, that is Charges 1 and 3, I would have imposed a total effective sentence of course including Charge 2 on the indictment, of six years and four months imprisonment, with a new non-parole period of four years and three months commencing today.

73All right, you can take a seat while the details of that are fed into the computer, and I check with both sides’ counsel whether I have overlooked anything and whether the figures work. Do you want to a few minutes?  Mr Martin, is there something you want to raise?

74MR MARTIN:  There might be, but I wouldn't mind just discussing it with my friend first ‑ ‑ ‑

75HER HONOUR:  Yes.

76MR MARTIN:  ‑ ‑ ‑ before I do.

77HER HONOUR:  If it's to do with the issue of how the cumulation works on the unexpired sentence ‑ ‑ ‑

78MR MARTIN:  Yes.

79HER HONOUR:  ‑ ‑ ‑ I did consider it, but I'm open to hear from you on that.  The only other alternative is to make it start today.  That would be no cumulation, but the only effect of it is, is that - the sentence was imposed last November. 

80MR MARTIN:  Yes, Your Honour.

81HER HONOUR:  So about three months has been served of it and as I understand it, it was twenty-one months with a non-parole period of twelve months.

82MR MARTIN:  Yes, Your Honour.

83HER HONOUR:  My total effective sentence on the - well overall, because the summary charge is concurrent is five years and two months.

84MR MARTIN:  Yes.  So is that with the intention - so I - on my calculation,
Mr Putrus has got eighteen months left on the sentence he was serving?

85HER HONOUR:  I see what you mean, that it's not ‑ ‑ ‑

86MR MARTIN:  It's just the amount.

87HER HONOUR:  It's whether three months is - yes.  I did look at this last Friday and I think this morning I've just got it wrong - yes, it won't work, it won't work.  It's got to be wholly concurrent.  It's got to start today.

88MR MARTIN:  Yes, Your Honour. 

89HER HONOUR:  It's academic in many ways - I can't know for sure that nothing will overturn the deportation order and also, I can't know whether the Parole Board will grant parole at the earliest opportunity.  But the head sentence may well be academic.  I had to fix a new non-parole period that took into account that there's effectively nine months left on the parole period that Judge Montgomery imposed, but the offences I am sentencing for required a heavier sentence than he imposed for the riot, in my view, for the reasons I have said.

90MR MARTIN:  Yes, Your Honour.

91HER HONOUR:  It may be that in fact there shouldn't be cumulation - cumulation as between Charges 1, 2 and 3, but not cumulation on Judge Montgomery's sentence. I really can't leave the Bench while Mr Putrus is here, but if you two want to discuss that, that may be the way it needs to be.

92MR MARTIN:  I’d appreciate that.

93MS VARDY:  Yes, Your Honour, thank you.

94HER HONOUR:  Yes.

95MR MARTIN:  If it's Your Honour's intention that the parole period doesn't change, we both believe that the non-parole period should be fifteen months because the parole period started in November of 2017.

96HER HONOUR:  No, no.  No, that's not my intention.

97MR MARTIN:  Sorry, I misunderstood.

98HER HONOUR:  I fix a new non-parole period ‑ ‑ ‑

99MR MARTIN:  All right.

100HER HONOUR:  ‑ ‑ ‑ commencing today which has taken into account that there is some time to run on Judge Montgomery's non-parole period ‑ ‑ ‑

101MR MARTIN:  Yes.

102HER HONOUR:  ‑ ‑ ‑ and what I would be imposing is a non-parole period on the five years and two months that.  I'm not backdating it from - if I were backdating it, it would be higher.

103MR MARTIN:  Yes, Your Honour.

104HER HONOUR:  There are two options, but the accepted way for the last few years is to impose a new non-parole period starting on the day it is imposed, and I intend that to be three years and ten months.

105MR MARTIN:  Yes, all right and I think Your Honour's ‑ ‑ ‑

106HER HONOUR:  What I think the problem was, and I recall thinking it through on Friday and then this morning reconsidering that.  But I think the problem is trying to cumulate anything of the head sentence on the head sentence imposed by Judge Montgomery ‑ ‑ ‑

107MR MARTIN:  Yes.

108HER HONOUR:  ‑ ‑ ‑ because it's less ‑ ‑ ‑

109MR MARTIN:  Correct.

110HER HONOUR:  ‑ ‑ ‑ than the one I'm imposing.

111MR MARTIN:  Yes, Your Honour.

112HER HONOUR:  And I would really be - I'd have to work out  - how long is to go on Judge Montgomery’s.  It's really twenty-one months less three.

113MR MARTIN:  I had eighteen months.

114HER HONOUR:  Eighteen?  Yes, I could do it by cumulating forty-seven months, but I think that's being a bit - I did think some cumulation was called for, but it's taken care of in the non-parole period, so far as cumulation of non-parole period is concerned and I think - it's also academic in one sense ‑ ‑ ‑

115MR MARTIN:  Correct.

116HER HONOUR:  ‑ ‑ ‑ with this head sentence.  So the neater way to do it is to acknowledge that although it's further offending, this is a longer period of imprisonment.  The head sentence is considerably longer than what's ‑ ‑ ‑

117MR MARTIN:  Yes.

118HER HONOUR:  -- - - left to run on Judge Montgomery's sentence and so if I do not cumulate anything onto the total effective sentence on Judge Montgomery's sentence, the total effective sentence I impose is five years and two months commencing today.  I fix a new non-parole period also commencing today ‑ ‑ ‑

119MR MARTIN:  Yes, Your Honour.

120HER HONOUR:  ‑ ‑ ‑ of three years and ten months.

121MR MARTIN:  Yes.

122MS VARDY:  Yes, Your Honour.

123HER HONOUR:  I will correct that in the revision of the reasons and leave out the need for cumulation there.

124MR MARTIN:  As Your Honour pleases.

125HER HONOUR:  So the net effect is it is five years two months as the head sentence and a non-parole period of three years and ten months.

126MS VARDY:  Yes, Your Honour.  As Your Honour pleases.

127HER HONOUR:  All right, can I see that?  Thank you.  The system has produced an advice about driver's licence disqualification.  I have not seen one of these for a long while and it has got Mr Putrus' address as Roxburgh Park which it is not anymore.

128MS VARDY:  Yes, Your Honour.

129HER HONOUR:  I will have that handed down.  Do you want that amended with the address or - apparently the system produces it.

130MS VARDY:  Yes, Your Honour, it does.  Thank you.  Your Honour, perhaps I can ‑ ‑ ‑

131HER HONOUR:  I don't know if he has a licence at all anyway.

132MS VARDY:  Unlikely, Your Honour.  Your Honour, perhaps I can provide it to Mr Putrus in ‑ ‑ ‑

133HER HONOUR:  Certainly, certainly. 

134MS VARDY:  Yes, Your Honour.

135HER HONOUR:  Do you want to - my associate - when the order is finalised, another copy will print out.

136MS VARDY:  Yes, Your Honour, no the address can stay the same, yes.

137HER HONOUR:  I'm just showing it to you.

138MS VARDY:  Yes, thank you.

139HER HONOUR:  And I don't think there are any other ancillary orders sought? 

140MR MARTIN:  No, Your Honour.

141MS VARDY:  No, Your Honour.

142HER HONOUR:  No doubt, samples have been taken and the like.  The order is not coming out properly.  I don't know how long it'll take to get it done properly.  I will sign a version that incorporates what I've just said, so that - - -

143MR MARTIN:  Yes, Your Honour.

144HER HONOUR:  ‑ ‑ ‑ Mr Putrus can be removed and later in the day, when it's figured out how to talk the computer into doing it.  It seems to be objecting at the moment.  I think I have made clear ‑ ‑ ‑

145MS VARDY:  Yes.

146HER HONOUR:  ‑ ‑ ‑ what the sentence is and Mr Putrus, I think it is clear enough to you and to your family and your barrister will be able to talk to you about it.

147OFFENDER:  Yes.

148HER HONOUR:  I will not keep you waiting in court any longer.  Could you remove Mr Putrus from the court.

149OFFENDER:  Thank you, Your Honour.

‑ ‑ ‑