Director of Public Prosecutions v Rahman

[2023] VSC 87

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0063

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
TAHMID RAHMAN	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2023
DATE OF SENTENCE:	23 March 2023
DATE OF REVISED SENTENCE:	12 April 2023
CASE MAY BE CITED AS:	DPP v Rahman
MEDIUM NEUTRAL CITATION:	[2023] VSC 87

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CRIMINAL LAW – Sentence – Sentence indication – Four co-accused – Guilty plea – Youthful offender – Aggravated burglary – Victim sustained fatal head injury – No prior criminal history – Primacy of general and specific deterrence, denunciation, just punishment and community protection – Pre-sentence detention – Good prospects of rehabilitation – Sentenced to 212 days’ imprisonment in combination with a Community Corrections Order – Sentencing Act 1991 (Vic) s 6AAA.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Porceddu with Mr P. Pathmaraj	Office of Public Prosecutions
For the Accused	Mr D. Cronin	Papa Hughes Lawyers

HIS HONOUR:

1. Tahmid Rahman, you have pleaded guilty to one charge of aggravated burglary, occurring on 18 July 2020 at Lalor.

1. The maximum penalty for this offence is 25 years’ imprisonment.

Sentence indication

1. On 3 February 2023, following an application by you, I gave a sentence indication pursuant to Part 5.6 of the Criminal Procedure Act 2009. In response to the submissions made on your behalf and on behalf of the prosecution, the indication I gave was that maximum total effective sentence I would impose on you would be a period of 12 months imprisonment.  That being the case, the question left open on your plea was whether you should have to return to custody and serve the remaining five months of that maximum.  On your behalf, Mr Cronin urged me to sentence you to the imprisonment you have already served, coupled with a Community Corrections Order, if I thought that was necessary.

1. The prosecution’s approach, though faintly pressed, was that you should return to custody and complete the 12 month sentence I indicated.

Circumstances of offending

1. On Tuesday, 23 June 2020, Adam Tiba and Abdullah Hammoud met with two men named Dimitrios Pramatias and Lorenzo Tigani in Roxborough Park. Dimitrios Pramatias planned to purchase a significant amount of cannabis from Abdullah Hammoud.  However, that plan fell apart when Adam Tiba and Abdullah Hammoud attempted to rob Lorenzo Tigani at gunpoint.

1. A physical struggle ensued between all four men, during which Mr Tiba and Mr Hammoud sustained stab wounds.  It is not suggested that you were part of this event or had any role in it.

1. Nearly a month later, on 18 July 2020, Lorenzo Tigani’s friend Christian Rubini organised a get together with Mr Tigani and their mutual friend Adrian Pacione. Christian Rubini wanted to provide support for Mr Tigani, who was mourning the recent loss of his grandmother.  They planned to eat pizza and watch the Clint Eastwood film, Gran Torino at Christian Rubini’s home at Unit 2, 2 Ella Court in Lalor.

1. Shortly before 10.40pm, four bullets would be fired into the front window of Christian Rubini’s home. One of those bullets struck Adrian Pacione’s head.  Mr Pacione was taken to the Royal Melbourne Hospital with life threatening injuries.  He was pronounced dead on 20 July 2020.

1. On the prosecution’s case, the four accused men – Adam Tiba, Abdullah Hammoud, yourself and Ammair Fahal, devised a plan to assault at least one of the occupants of Unit 2, 2 Ella Court on 18 July 2020.  The accused, you included, were seeking retaliation for the incident that occurred on 23 June 2020, during which Mr Tiba and Mr Hammoud had been stabbed. On the prosecution’s case, the offender who fired the four bullets into Christian Rubini’s home was the accused man Adam Tiba.  His trial is yet to be heard.

1. At the time of your participation in this matter, you were a little over 18 years of age. The prosecution alleges, and you accept, that you were involved in a series of phone calls on the day with the other offenders, particularly stating that you were going ‘to go to that thing’, dealing with those who had attacked Adam Tiba.  There were a large number of phone calls which illustrate your enthusiasm for what you thought was about to happen.

1. At 9.23pm on 18 July 2020, you and Tiba were in a car together when you told Fahal what could be seen at the target premises.  Shortly after 10.38pm, you all arrived at the premises.  Inside were Rubini, Tigani and Pacione, who was later fatally wounded. 

1. An effort was made by you and your accomplices to enter the premises.  That failed. The front door was locked from inside and it was after that that the four shots were fired into the house through a window by Adam Tiba, causing the death of Pacione.  You, Tiba, Fahal and Hammoud then fled the premises.

1. You accept that you entered into an agreement with the other accused to commit the aggravated burglary and made various arrangements in pursuit of that.  After your arrest on 21 October 2020,  you effectively denied any involvement.  You were charged and remanded in custody until you were granted bail by Coghlan JA on 5 July 2021.

1. This was a serious offence that you were involved in, carrying a maximum penalty of 25 years’ imprisonment and I know you understand that to be so.  You had no part in the shooting that caused the death of Pacione and apart from being an important part of the description of events, it does not play any role in the sentence to be imposed on you.

Personal circumstances

1. You were born on 22 March 2002 and were 18 years old at the time of the alleged offending.  You are now 20 years old.

1. At the time, you were living with your family in Roxburgh Park.  At the time of these offences, you were using both illicit and prescription drugs. 

1. You are without previous or subsequent criminal convictions.

1. You were born in Australia into a family from Bangladesh.  Your father had a significant career in the public service and your mother is a senior manager at Telstra of long standing.  You are supported by your family.

1. Prior to your arrest, you had engaged in the use of a number of drugs including cannabis, LSD and the prescription drug Xanax. On your remand, that ceased and you have remained drug-free since. 

1. Whilst in custody for this matter, you completed your Year 12 examinations.  You were successful, enrolled in university and have now completed your first year of a psychology course having changed from a business course.

1. Since your release on bail in July 2021, you have married to a lady you have known since secondary school.  You are planning to start a family.

Defence submissions

1. Your counsel submitted that since being arrested and remanded, there's been significant efforts and change put in place by you.  You are now at the stage where you have completed your Year 12 study and exams whilst in custody.  You have remained offence-free and drug-free, and have now completed your first year of university.

1. You found the 212 days of pre-sentence detention during the pandemic very confronting.  During that time, it would appear that significant changes occurred in your life and the effort you have made toward your rehabilitation from both this offending and your drug use, was important.  Bearing that in mind and your plea of guilty, your counsel submitted that I should be cautious about the effect that sending you back to prison would have on you.  You have, he argued, served a significant period in custody already.  He urged that as an alternative to further custody, I impose on you a Community Corrections Order.

Prosecution’s submissions

1. On behalf of the prosecution, Mr Pathmaraj briefly submitted that you should be returned to custody to complete the 12-month sentence that was indicated by me.  When I enquired as what the benefit of that was for the community or for you, given your rehabilitation and the changes you have made to your life, he, with respect, struggled to answer.  The fact is that specific and general deterrence are significant sentencing factors in any case like this.  In your case, specific deterrence is much less significant and general deterrence is substantially displaced by your youth and your excellent rehabilitation.

Conclusion

1. In my opinion, you should not have to return to custody.  Serious as the offence was, your complicity was based on agreement to participate and a role in organising people to go to the Lalor premises.  You were there and supporting what was occurring, though you are not alleged to have done any particular positive act in trying to gain entry. 

1. On the other hand, your rehabilitation from the circumstances you were in at the time has been nothing less than outstanding in the way I have described.  To return you to custody for the balance of the maximum sentence, I had indicated would achieve nothing useful and likely undermine your progress which neither in your interests or that of the community.  The transition you have achieved is rare, particularly among young offenders and I propose to reward to reward with a sentence that I acknowledge is very lenient.

Sentence

1. I will sentence you as follows.

1. On the charge of aggravated burglary, you will be sentenced to be imprisoned for a period of 212 days.  You have already served that period.  I also order that you be placed on a Community Corrections Order for a period of 12 months, commencing this day and that you perform 150 hours of unpaid community work.

1. I declare that your pre-sentence detention is a period of 212 days and I direct that period be reckoned as time already served.

1. Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty but stood your trial and been found guilty by a jury of this charge, I would have sentenced you to a period of 2 years and 6 months imprisonment, and would have directed that you serve 18 months before becoming eligible for release on parole.